53 Fla. 51 | Fla. | 1907
The plaintiff in error was indicted in the circuit court for Jackson county charged with murder and takes a writ of error to a judgment and sentence convicting him of manslaughter.
From the transcript it appears that Jim Kent, the plaintiff in error, about 16 years of age, shot and killed Tom Creamer, about 13 years of age. Kent claims the shooting was an accident. He testified: “My father sent me to hunt the calf. I took the gun because papa told me. Tom Creamer went-with me. We stopped at the place where he was killed, I suppose ten or fifteen minutes, we were playing oh the grass. We did not hit each other with anything more than straws. We did not get mad about that. I told him to let’s go- home or get the calf one, and he said- All right,’ and jumped up and started to run off, and I went back to get my gun, it was back around behind me in some leaves. I started to run off after him and stumped my toe and fell down. The gun fired a,s I fell. When it fired it hit Tom. d tried to pick him up, but saw he could not stand. I was not pointing the gun towards Tom when I fell.” There was testimony that the two had quarreled several times and that the accused had made threats against the deceased. After the killing the accused made contradictory statements as to it.
One witness who was three or four hundred yards away-testified: “When I heard the report of the gun I looked around and shortly afterwards I saw the smoke. I saw a man went down, picked up something I thought but he didn’t. After he stooped down he walked away from the place. I do not know who that man was, but he had on the same clothes that Jim Kent had on when he went back there. He was about the same size as Jim Kent. The
Error is assigned on the refusal of the court to give the following charges requested by the defendant: “The court charges you that even though the defendant may on the day of the death of Tom Creamer, if he is dead, have made statements as to the manner of his death different from what he testifies (if you find that he has testified as to- the manner of his death) there is no presumption of law from his doing so that what he testifies is untrue.” “There is no-presumption of law arising- from the making of contradictory statements that the person making them is guilty of crime.”
The making of contradictory statements by the defendant as to the circumstances of the killing was a matter for the jury to consider in passing upon the credibility of the defendant as a witness in the case. The requested, instruction encroached upon this province of the jury, and as no presumptions of law exist as stated in these instructions they were misleading and properly refused.
Refusals to give the following- charges are assigned as error: “The burden is upon the State to -prove to you by evidence beyond a reasonable doubt that the killing of Tom Creamer was at the hands of the defendant, and was not the result of an unavoidable accident.” “After a consideration of the whole of the evidence you have a reasonable doubt whether the killing of Creamer was intentional or the result of an unavoidable accident, you will give the defendant the benefit of such doubt and acquit him.” “If after a consideration of the whole of the evidence, you believe that Tom Creamer was killed, either accidentally or intentionally, by Jim Kent, but you cannot say beyond a reasonable doubt from the evidence which i-t
These charges given by the court are in accordance with the statute as to excusable homicide and state correctly the law as to the burden and quantum of proof and presumption of innocence. The defendant was convicted of
The court refused to give the following charge: “Culpable negligence is not merely an omission to use ordinary caution and care, but must be the result of an intentional act or acts which are done without the exercise of ordinary care or caution.” An exception was taken and it is urged here that the refusal to give the charge was error because the court in its general charge did not define culpable negligence.” Culpable negligence does not necessarily result from an intentional act. If the killing was by “culpable negligence” then it was not necessarily “intentional.” State v. Lockwood, 119 Mo. 463, 24 S. W. Rep. 1015. As the requested charge does not give a correct definition of “culpable negligence” there was- no error in refusing to give it. The mere failure of the court to give a definition of “culpable negligence” is not error. Blount v. State, 30 Fla. 287, 11 South. Rep. 547; Rawlings v. State, 40 Fla. 155, 24 South. Rep. 65; Milton v. State, 40 Fla. 251, 24 South. Rep. 60; McCoy v. State, 40 Fla. 494, 24 South. Rep. 485; Lovett v. State, 30 Fla. 142, 11 South. Rep. 550; Webster v. State, 47 Fla. 108, 36 South. Rep. 584.
It is urged -that the evidence does not sustain the verdict. The defendant claimed that the shoot’ng was an accident. There was evidence of threats -made by the accused against the deceased. After the killing the defendant made contradictory statements as to it. There was
The judgment is affirmed.