24 Fla. 162 | Fla. | 1888
delivered the opinion of the court:
The plaintiff in error was indicted for murder at a special term of the Circuit Court for Polk county, in January; 1887, John C. Newcastle being the victim. On arraignment at the succeeding May term there was a plea of not guilty, then a trial and conviction of murder in the second degree. A motion for a new trial was made, which the •court denied; and then a motion in arrest of judgment, which was also denied.
The question presented is whether the facts as they thus appear constitute sufficient record evidence of the return of the indictment into court, or whether a formal entry in the minutes is necessary to show such return ? There is noth
In Collins vs. The State, 13 Fla., 651, Judge Westcott, reviewed thequestion at considerable length, citing authorities of great respectability to sustain the view that such record evidence is not essential, and though the precise question now before ns as raised in the lower court has not been decided, the evident inclination manifested by our decisions is against the essentiality of such record evidence. Bass vs. The State, 17 Fla., 685, and citations.
The motion hero does not controvert the actual presentment. of the indictment in open court by the.grand jury, but merely avers the omission of the proper entry of such presentment. If the issue of such presentment was squarely raised by the motion we do not know but that we should arrest the judgment, but as it is not, our conclusion in view of the evident tendency of our former decisions and the authorities cited in them is to affirm the action of the Circuit Judge iu denying the motion as made.
We come now to the errors assigned as having been committed during the progress of the trial, the principal one -of which is the action of the court in denying the motion fora new trial. The motion was based on the usual general grounds with this addition : that “ the evidence in the case did not warrant the jury in convicting the defendant of murder in the second degree.”
We find nothing in the record to lead us to pronounce the court in error on the other grounds. As to this, the -evidence so far as material, is that the plaintiff in error lived with Newcastle and his wife, and that on the night of the 9th of January, 1887, Newcastle was found dead in his bed. Ilis death was caused by a gun-shot wound penetrating the skull under the right eye about an inch below the •orbit, passing backwards to a point about two inches under the left ear. There were powder stains around the opening of the wound, where the face was badly burnt. How and by whom the wound was inflicted does not appear from .any positive testimony of witnesses present. The evidence on the subject is that of a physician who was called about eleven o’clock that night to see Mrs. Newcastle. He says that the plaintiff in error came for him, and while at his house said he had shot Mr. Newcastle. Either then or soon afterwards the full statement of plaintiff in error was “that Newcastle was choking Mrs. Newcastle, and threatened to kill them both when he heard him (plaintiff in error) com
This is all the evidence bearing on the question as to-whether the jury were right in finding a verdict of murder in the second degree. Does it warrant that verdict? We think not.
The statute of this State in regard to homicides, makes-seven degrees of the offence, three of murder and four of manslaughter. It is unnecessary to recite these in detail here, but it is not to be forgotten that every degree has its own distinguishing features, and that facts which bring a case within either must be met by a verdict of guilt in that special degree. The offence each degree marks out is a separate offence from that marked out by either of the other six, to be determined as the statute prescribes “ according to the facts and circumstances of each case.” In the present case the offence the jury fouud is defined in the statute thus: the killing of a human being, “when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree.”
To understand what this means, let us consider it in conneetion with the other degrees of murder as defined in the statute. The killing of a human being, “ when perpetrated from a premeditated design to effect the death of the person killed, or any human being, shall be murder in the first degree.” “ When perpetrated without any design to-effect death, by a person engaged in the commission of any
Without further analysis to distinguish these two degrees, we refer to Darry vs. The People, 10 N. Y. R., 120, for a full and exhaustive discussion of the subject. In that State those degrees are subdivisions of the first, but the marks of distinction are the same ; and the reasoning and decision of that case sustains our conclusion in this.
But it may be asked, if the second degree includes a
In deciding that the evidence in this case does not warrant ti verdict of murder in the second degree, we refrain from prejudging a future trial, by any expression of opinion as to the degree of the offence of homicides that evidence does point to.
In the discussion of this point, the Attorney-General dis-seats from what is said in Potsdamer vs. State, 17 Fla., 396, 904, of the conviction of an offence of a minor grade having tiie effect of an acquittal of the higher grade charged in the indictment. When a ease shall come botore us in which subsequent to a verdict of guilt of the lower grade, a new trial has been granted and has been followed by a conviction of the higher grade of the offence, we will foul called upon to express an opinion. No such circumstances existed in Potsdamer’s case.
As to other errors assigned, the first sets up objection to the admission of the testimony oi the witness Griffin in regard to statement made by Mrs. Newcastle at. the time of the arrest of the plaintiff in error. There is nothing of any consequence in those statements, except as showing the affectionate relations between the two, and her distress on account of his being taken away. What she said being
The remaining error assigned is in the admission of the testimony of a brother of Newcastle as to a letter or letters he had received from the deceased. The object was-somewhat the same as in the admission of the other testimony, by showing complaint because of misconduct of the-wife. But such testimony was clearly inadmissible. The letters themselves should have been produced, or their non-production accounted for, if proper evidence at all. We think, though, they could not have been admitted because while the acts and conduct of the wife might be enquired into for the reason we have already given, this cannot be done by statements of the husband to a third party, whether by letter or otherwise, not communicated to her, or shown to have had any part or influence in the-subsequent tragedy. This method of getting at the acts and conduct of parties to find a motive for the deed is too remote and unreliable. Weyrich vs. The People, 89 Ill., 90.
For the errors herein declared, the judgment is reversed and the case remanded for a new trial.