Kelly v. State

39 Fla. 122 | Fla. | 1897

'Carter, J.:

There is nothing in the fourth assignment of error. The record shows that the motion for a new trial, not the second ground of the motion, as contended by plaintiff in error, was denied. The bill of exceptions also shows that the motion was overruled.' Upon a fair interpretation of the statements in the record proper and the bill of exceptions, it appears that the court investigated certain facts which were applicable only to the second ground, and thereupon denied the motion for a new trial generally.

The third assignment of error questions the correctness of the ruling of the Circuit Court denying the motion for a new trial. The second ground of this motion relates to the alleged disqualification of the juror MoLeary, because of bias, and because of a previously formed opinion. This motion was properly-overruled, because upon an application of this kind the law requires an affidavit that the defendant and his counsel did not know at the time the juror was empanelled, that he was prejudiced against defendant, or had formed or expressed an opinion as to the defendant’s guilt. In this case there was an affidavit from defendant’s counsel only, and it was nowhere al leged that the defendant had no knowledge of the disqualification of the juror before he was sworn. Morrison vs. McKinnon, 12 Fla. 552; Irvin vs. State, 19 Fla. 872; Anderson vs. State, 14 Ga. 709; Booby vs. State, 4 Yerger (Tenn.), 111; Achey vs. State, 64 Ind. 56; Clough vs. State, 7 Neb. 320; Brown vs. State, 60 Miss. 447; State vs. Tuller, 34 Conn. 280; Thompson & Merriam on Juries, page 304; Rapalje’s Criminal Procedure, sec. 211. The testimony of August Blum, and A. M. Michelson and the affidavit of Miohelson, being confined entirely to alleged declarations of the juror'after the verdict, were not competent evidence-. No rule is better settled than that which forbids a juror to impeach his own verdict by testimony as to-the motives and influences by which the deliberations-of the jury were governed. Coker & Scheiffer vs. Hayes, 16 Fla. 368; Godwin vs. Bryan, 16 Fla. 396; McMurray & Brittain vs. Basnett, 18 Fla. 609; Thompson & Merriam on Juries, sec. 440. A juror will not be permitted to impeach his own verdict by an affidavit made after the verdict that he had formed and expressed an opinion, before the trial. 1 Bishop’s Criminal Procedure sec. 1270; People vs. Baker, 1 Cal. 403. Neither can the declarations of a juror-after trial, impeaching his verdict, be proven by a. third person, on a motion for a new trial. 1 Bishop’s Criminal Procedure, section 1270; Thompson & Merriam on Juries, sec. 445; Godwin vs. Bryan, 16 Fla. 396; 2 Thompson on Trials, 2622.

The testimony of J. C. Turner was clearly irtsnfBcient to disqualify McLeary as a juror.. It does not-show that McLeary witnessed any part of the difficulty between Kelly and Tallant. McLeary may have been, at Laco’s fruit stand near Bettelini's Bicycle Agency at the time of the shooting, and might have knowa that defendant had already killed one man in South Carolina, and was then wanted in some other State fox* killing another, and yet he may have had no- bias ox* prejudice against defendant; nor have ever formed or expressed any opinion as to his guilt or innocence of the crime for which he was then being tried. ‘‘The-incompetency that will authorize the court below to-interfere after a juror has been sworn, must be of such a character as would defeat a fair and impartial trial.”' State vs. Madoil, 12 Fla. 151.

The first and second assignments of exTor, and the remaining ground of the motion for a new trial, are identical, except that the motion for new trial complains that the verdict is contrary to the charge of the-court. As the charge of the court is not brought up-in the record, we are unable to consider this question. It is insisted under the first and second assignments» of error that the proof was insufficient to show beyond a reasonable doubt that Tallant came to his death from the effects of the wounds inflicted upon him by defendant; and to show premeditation on the part of defendant. It is also insisted that defendant should have been acquited on the ground of self-defense. These were questions for the jury to determine from®. ■the evidence, and we must accept its finding as conclusive, unless the preponderance or want of evidence is-such. that the verdict must have been produced by considerations other than a due respect to the evidence. Dukes vs. State, 14 Fla. 489; Savage and James vs. State, 18 Fla. 909; Irvin vs. State, 19 Fla. 872; Carter vs. State, 22 Fla. 553; Hicks vs. State, 25 Fla. 535; 6 South. Rep. 441; Yates vs. State, 26 Fla. 484, 7 South. Rep. 880; Baker vs. State, 30 Fla. 41, 11 South. Rep. 492; Wescott vs. State, 31 Fla. 458, 12 South. Rep. 846.

In the case of Wescott vs. State, 31 Fla., text pages 470, 471, this court said: “That the accused caused the death of the deceased, * * is shown beyond all reasonable doubt; and the only possible question that can arise on the testimony is whether or not the killing was done with a premeditated design to effect the -death of the deceased. The premeditated design which is essential to make out a case of murder in the first ■degree is a question of fact for the jury, and in the present ease it was properly submitted to them, and lound against the accused. * * * The killing was unnecessary and unjustifiable and was the result of the ■defendant’s own wrong.” This quotation is applicable to the facts of this case. According to the testimony of the defendant it might be contended that there was no premeditation, but his version of the affair is not borne out by the testimony of any other witness. According to the testimony of Abe Rippa, ■one of defendant’s witnesses, the difficulty did not occur in any effort on the’ part of defendant to clear the ¡sidewalk for Rippa’s mother and sister to pass, as claimed by defendant, but occurred after Rippa and Ms mother and sister had passed, and gone snch adistance that they saw none of the difficulty. If, as ■claimed by defendant, the threatening gestures and attitudes assumed by Tallant’s f rienda induced him to believe his life in danger, it is very strange that instead of directing his fire at them after the second shot, he should have walked up to the prostrate form of •deceased and fired three more shots at him. The claim ■of defendant that he had no desire to kill the deceased, but only to disable him, is fully answered by his conduct in deliberately emptying his pistol at deceased after he was entirely disabled. Giving to the finding of the jury the weight which the law requires, we are unable to say that the evidence did not justify the verdict, and the judgment of the court below is affirmed.