40 Fla. 251 | Fla. | 1898
Writ of error from the Sixth Judicial Circuit for Hillsborough county, the conviction being for murder in the first degree. The indictment upon which plaintiff in error was arraigned and convicted contained two counts reading, with usual beginning and the signature of prosecuting officer omitted, as follows: 1. That Thomas Milton, late of the county of Hillsborough aforesaid, in the county and State aforesaid, laborer, on the twelfth day of February, in the year of our Lord one thousand eight hundred and ninety-six, with force and arms at and in the county of Hillsborough aforesaid, in and upon one Georgie McGraw, in the peace of God and the State of Florida then and there being,, feloniously, wilfully, unlawfully, of his malice aforethought, and from a premeditated design to effect the death of
2. That Thomas Milton, late of the county aforesaid, in the circuit and State aforesaid, laborer, on the twelfth day of February, in the year of our Lord one thousand eight hundred and ninety-six, with force and arms at and in the county of Hillsborough aforesaid, in and upon one Robert Meacham, in the peace of God and the State of Florida then and there being, feloniously, unlawfully, wilfully, of his malice aforethought, and from a premeditated design to effect the death of him, the said Robert Meacham, an assault did make, and that the said Thomas Milton, a certain pistol then and there loaded and charged with gun-powder and divers leaden bullets, with which said pistol loaded and charged as aforesaid he, the said Thomas Milton, was then and there armed, and in his right hand then and there held to, against and upon him, the said Robert Meacham, then and there unlawfully, feloniously, wilfully, of his malice aforethought and from a premeditated design to effect the death of him, the said Robert Meacham, did shoot and discharge, and that the said Thomas Milton, with the leaden bullets aforesaid out of the pistol aforesaid, then and there by the force of the gun-powder and the leaden bullets sent forth as aforesaid upon one Georgie McGraw, in and upon the body of the said Georgie McGraw, about one inch below the left breast of her, the said Georgie McGraw, then and there unlawfully, feloniously, wilfully,, of his malice aforethought, and from a premeditated design to effect the death of the
The sufficiency of the indictment was questioned by demurrer and motion in arrest of judgment on the ground of a failure to allege that the death of the deceased was caused by the wound inflicted. The alleged defect in the indictment is in the latter part of both counts where it is stated, immediately after the description of the wound, “of which said mortal wound she, the said Georgie McGraw, then and there, in the county of Hillsborough aforesaid, did languish, and languishing did live until the twenty-ninth day of March, in the year of our Lord one thousand eight hundred and ninety-six, upon which said last day she, the said Georgie McGraw, in the county of Hillsborough aforesaid, did die.” This,
Section 2893 Revised Statutes provides that “no indictment shall be quashed, or judgment be arrested, or new trial be granted on account of any defect in the form of the indictment, or of'misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal, to substantial danger of a new prosecution for the same offense;” and section 2892 enacts that every indictment shall be deemed and adjudged good which charges the crime substantially in the language of the statute prohibiting the crime, or prescribing the punishment, if any such there be, or if at common law, so plainly that the nature of the offense charged may be easily understood by the jury.” Notwithstanding the language of the sections quoted it still is essential that the indictment should expressly allege matters of substance, and it can not be doubted that an indictment for murder must plainly show that the death of the deceased ensued from the wound described within a year and a day from the date of its infliction. All the old precedents that we have examined, where death was not instant, show the infliction of a mortal wound at one date, of which wound the party languished, and languishing lived until a subsequent period within a year and a day from date of infliction, and then died of said wound. An indictment should not, however, be pronounced bad merely because it is not in exact accordance with common law precedents, still a pleader in at
T. Chisholm, a witness for the State, was permitted to testify to an altercation between the accused and the deceased two days before the latter was shot. During this altercation the accused cursed and struck the deceased and stated, using his language, “I will be the death of you. You have met up with one of the G— d— meanest nigger men as ever you had anything to do with in all )''our days.” The deceased then stated that she was going to leave him; the accused further said, “I don’t care where in h — • you go, you need not stop in Tampa and think I won’t find you; you need not go to Jacksonville; I will find you, don’t care where in the h— you go, and when I find you I will kill you and the son of a b— I catch with you, and be hanged with Harry Singleton. I know d— well he will be hung.” The accused and deceased were not married, but lived in the same house, and the altercation detailed occurred only two days before the killing. This testimony was objected to on the ground that it was not relevant unless
The testimony was clearly admissible for the purpose of exhibiting the animus of the 'accused towards the deceased at the time of ’the killing, which can always be shown by previous declarations evincing a purpose to kill when made at a time not too remote from the occurrence. Here the threat to kill if the deceased left was made two days previous to the killing, and the testimony shows that the deceased left the house of the accused the same day she was shot.
Robert Meacham, a State witness, was permitted to tell the jury where he was shot by the accused in the same difficulty, and at the same time the deceased was shot, and also to show his wounds to the jury. This was objected to on’ the ground that there was no allegation in the' indictment that Meacham was shot. The second count in the indictment alleged that the accused made an assault upon Meacham with intent to murder him, and then and there shot and killed Georgie McGraw. The defense was that the accused shot at Meacham in necessary self-defense, and that missing him the bullet struck the deceased. The theory of the prosecution was, and testimony introduced to sustain it, tended to show that the assault upon Meacham was not in self-defense, but from a premeditated design to kill and murder him. It was clearly competent to show the nature of the assault upon Meacham, and we discover no error in the ruling on the objection made. Killings v. State, 28 Fla. 313, 9 South. Rep. 711.
An objection is made that the court erred in permitting the State Attorney to attempt to impeach a witness named Annie Butler. The circumstances connected with this objection is that the name of the witness, Annie Butler, was placed on the indictment as a State witness,
The deceased, Georgie McGraw, was shot in a house occupied by Lizzie Gibbs, and in the examination of one of defendant’s witnesses, Johnson Williams, he was asked if he knew the character of Lizzie Gibbs as a lewd woman. This question was objected to on the ground that it was irrelevant and immaterial, and ruled. out by the court. In his exception to the ruling of the court on this question plaintiff in error seeks to raise the question of his right to show the character of Lizzie Gibbs for lewdness, but we do not see that he had such right at the time the ruling was made. Lizzie Gibbs had not then been examined as a witness, and the question-
Another exception to the ruling of the court on the evidence relates to the exclusion of proposed testimony by the defendant that he had given Georgie McGraw, the deceased, a pistol while she was at his house. There is no proof that the deceased was seen with any pistol at the time she was shot, or that she had given any pistol to Robert Meacham, who was with her in the room at the time. It appeared in evidence that the accused and deceased had lived together in the same house, but had separated after a quarrel. The deceased rented a room from Lizzie Gibbs and had moved into it a short time before the shooting occurred. Immediately prior thereto, from five to fifteen minutes, the deceased and Robert Meacham entered the room together in which there was a bed. The defendant, who was a policeman, of the cit}'of Tampa, testified that when he went to the door of the room in which said parties were, he found Meachain in bed and that after speaking to the deceased he was ordered out of the room by Meacham; that upon his declining to go, or saying that he would like to see Meacham put him out, the latter drew from under a pillow on the bed a pistol and tried to shoot him, defendant.
We do not find airy refusal to permit a proper test of the knowledge of Dr. Bird, .as an expert, and there, is no erroi in respect of his testimony..
The defendant was sworn and proposed to make a statement to the jury without being examined as a witness. This right was claimed under section 2008 Revised Statutes, and it is contended that it has not been taken away by the act of 1895, Chapter 4400. The court ruled that the defendant could voluntarily take the stand and testify only as other witnesses and under the rules governing witnesses generally. That this ruling was correct is clearly shown by our previous decisions. Lester v. State, 37 Fla. 382, 20 South. Rep. 232; Hart v. State, 38 Fla. 39, 20 South. Rep. 805.
It is further assigned for error, and insisted on here, that the court erred in not instructing the jury as to the right of a majority of their number to recommend the accused to the mercy of the court, and also in not charging the jury upon the law of murder in the second degree. It is not error for the court to omit to inform the jury that a majority of their number can recommend the accused to the mercy of the court. Newton v. State, 21 Fla. 53; Garner v. State, 28 Fla. 113, 9 South. Rep. 835. The court may'' so instruct the jury if it is deemed necessary, or the defendant’s counsel may read the statute to the jury if it is desired that they be informed of the same. No request was made to instruct the jury on the subject of their right to recommend the accused to mercy, or upon the law of murder in the second degree. If the accused desired the law of murder in the second degree to be given to the jury it was his duty to request it, and a failure to do so deprived him, under the settled rule in this State, of any ground of exception on account of the omission to so charge. Blount v. State, 30 Fla. 287, 11 South. Rep. 547.
The following instruction given by the court to the
For the errors in ruling out the testimony in ref er-en ct to giving.the pistol to the deceased, Georgie Mc-Graw, and in giving the clearly erroneous charge, the judgment is reversed and a new trial awarded.