82 Fla. 24 | Fla. | 1921
The grand jury empaneled in Jackson County at a regular term of the Circuit Court returned an indictment against the defendant charging him with murder in the first degree. Upon a trial he was found guilty of murder in the second degree. Motion for new trial was made and denied. The statutory penalty for such offense was imposed. From the judgment imposing sentence writ of error was taken from this court.
There are two assignments of error. The first questions the propriety of the refusal of the trial judge to give an instruction on behalf of defendant to the jury in the form
The purpose of this instruction was to submit to the jury the question of whether or not defendant acted as a reasonably prudent and cautious man would have acted under similar circumstances and to point out to them that in their deliberations upon this question defendant was entitled to have them take into consideration the fact of threats alleged to have been made against him by the deceased.
The fact that deceased had threatened the life of defendant was proved. That such threats had been communicated to defendant before the homicide was testified to by defendant himself. There was no dispute upon the point of whether threats were made or whether such threats had been communicated to defendant. How the alleged threats of the deceased could have affected the conduct of defendant without having been communicated to him is not suggested, and it would seem that it could not reasonably be urged that an uncommunicated threat would have influenced defendant’s action. To so qualify a requested instruction as to make it accord with an undisputed fact cannot be harmful.
Other grounds of the motion for new trial raise the question of the sufficiency of the evidence to support the verdict. There is ample evidence to support a conviction of murder in the second degree. It is true, as we have said, that it was proved that deceased had prior to the homicide threatened to take the life of defendant. But at the time of the killing of the deceased by the defendant, which he admitted, deceased seemed to be making no efforts to put his threats into execution and there was no real or apparent necessity for taking his life by defendant.
The judgment'will be affirmed.