75 Fla. 434 | Fla. | 1918
Tbe plaintiff in. error, who will hereinafter be called the defendant, was convicted of murder in the first degree in tbe Circuit Court of Escambia County and sentenced to death. Tbe case is here for review upon writ- of error.
There were only two witnesses to tbe billing — tbe defendant and a man in company with tbe deecased-^ and there is no irreconcilable conflict between their testimony.' '
Tbe defendant lived in Alabama and 'came into
This statement contains all the testimony concerning the actual killing. And it presents the testimony of the witness Nelson in its aspect most favorable to the State. He weakened considerably on cross-examination; not that he seemed reluctant to tell the whole truth when interrogated, but in his direct and voluntary statement he very naturally remembered most vividly those things which might in some way favor his deceased friend.
There was some additional testi' ony, brought out upon cross-examination of Ernest Lassiter, brother-in-law of the defendant, .to the effect that he had warned the defendant to go to Flomaton by an obscure road, because there was always someone out there on the public road “meddling with strangers” at night.
The, deceased was a deputy sheriff, and he had been
The contention of the State is that the defendant was violating the law by carrying a pistol in his hand without first procuring a license to carry it, and that the warning of his brother-in-law ought to have been sufficient to inform him that the “meddlers” were sheriffs.
It has long been the settled law in this country that one may lawfully repel an attack upon him, although made by an officer who tries to arrest him, if he does not know that the person trying to make the .arrest is an officer. This is true regardless of whether or not the party attacked has committed some offense which subjects him to arrest. Starr v. United States, 153 U. S. 614, 14 Sup. Ct. Rep. 919.
The case of Miller v. State, decided at the present term of this court is very much in point, and in that case the authorities are gathered and examined.
It is very necessary that officers of the law 'be protected against violence at the hands of the lawless, both white and colored; but in order to come within the protection of the law they must make known their official capacity before exercising their prerogative of arrest with the attendant assault. Upon thus making themselves known they come within the protection of the law, and the citizen is bound to submit, at least to the point of ascertaining the character of the charge and the extent of the officer’s authority. But when an officer
Whatever there may be of racial or caste distinctions in other realms of society, all men are equal before the law in the matter of security for their persons and property, and this right to repel unexplained assaults is no less the right of the humblest citizen of the land than of the highest.
It is urged by the State that the question of whether or not the defendant knew his interceptor to be an officer of the law was a question of fact for the jury. This would be true if there were any conflict in the evidence at this point, or any testimony that he had such knowledge. But even admitting that his brother-in-law told him that deputy sheriffs were likely to arrest him, he would nevertheless have had a right to presume that they would approach him in a proper and legal manner, and would have been warranted in repelling the assault made in the manner it was unless he had acquired actual knowledge in some other way that he was being halted by an officer.
Various assignments are based upon the refusal of the court below to give certain charges requested by the defendant; but a careful consideration of the entire charge of the court shows that every point made by these refused charges was fairly presented to the jury in other parts of the charge, with the exception of. requested charges 17 and 18, covered by assignments 45 to 48 inclusive.
The question of the constitutionality of the section of the General Statutes here under consideration is a vexed question upon which the courts of the country are by no means in accord. And while it is a question upon which this court has not passed, it ought not to be decided upon a collateral attack unless such decision is necessary in disposing of the instant case. There is no necesisty for such decision here; because it may be admitted for the moment that Section 3267 is valid, or, on the other hand, that it is invalid, without in any way affecting the case at bar. If it be held invalid, then the defendant had a right to carry the pistol in his hand, as it is testified he was carrying it when accosted. If it be held valid, then he might have been committing a misde'r eanor by carrying the pistol without a license, if he was in fact carrying it without a license.
But, even admitting that the defendant was committing a misdemeanor in carrying the pistol, this fact would not justify the manner in which the deceased accosted him. In the case of Starr v. United States, supra, Chief Justice Fuller crystalized the law of this subject by saying that the intrinsic rightfulness of the occupation or situation of a party, having in itself no bearing upon or connection with an assault, does not impose a limitation upon the right to repel such assault.
The remaining assignments of error have been examined and found to contain no reversible error. But the testimony is utterly insufficient to sustain the verdict of murder in the first degree, and the court below erred in denying the motion for new trial on that ground. Baker v. State, 54 Fla. 12, 44 South. Rep. 719.
The judgment of the court below is reversed, and the case is remanded for further proceedings not inconsistent herewith.