76 Fla. 421 | Fla. | 1918
The plaintiff -in error, Stinson, hereinafter referred to as the defendant, was convicted in the Circuit Court for Columbia County of the crime of murder in the second degree upon an. indictment charging him with the murder of James Prevatt on May 19, 1917. The indictment was filed on April 23, 1918, the defendant pleaded not guilty three days later and the trial was begun on the first day- of May following.
The defendant by his counsel moved for a continuance upon the ground that a material witness named Harry Green ivas then absent without the consent of the defendant. The motion was supported by the affidavit of the defendant, the certificate of Dr. Dyess that Green on April 30th, was nnder treatment and not ¡able- to attend court, the affidavit of Mr. Gillen that Dr. Dyess was a reputable physician, and the affidavit of Mr. Albritton confirmatory of Dr. Dyess’ certificate.
The affidavit filed in support of the motion for continuance states that the absent witness would testify that he “was running ah engine and stopped at the place Avhere the killing occurred a short time before it occurred, got off his engine to go to get orders,, when he saw a crowd of men on another track, one of them Avas Jim Prevatt, heard talking, saw Prevatt being searched, .saw his hands held up and saw a pistol in his hand at
According to the defendant, the circumtsances of the killing were as follows: The defendant was an employee of the East Coast Lumber Co., as night watchman; he had been appointed a deputy sheriff; had taken the oath and filed his bond with the Connty Commissioners as the law directs, although the bond had not been approved. The deceased, Jim Prevatt, had a pistol and was carrying it concealed. This fact the defendant knew early in the day, but made no effort to arrest Prevatt then. The defendant said that he “did not want to pull Jim at all until he forced me to do it.” At about 9 o’clock at night of the same day, the defendant met Prevatt on the railroad track and told him that he would have to arrest him. Prevatt said all right and “took his gun up in his right hand.” The defendant then ordered one of severay bystanders to “search” Prevatt. The defendant told the bystander that the pistol was in Prevatt’s hand and to take it. The bystander stepped aside without getting the pistol and the defendant undertook to get it. In doing so he brushed Prevatt’s sleeve, who said, “Keep your damn hands off me,” and “came down with it (the pistol) at” the defendant. Then the defendant shot Prevatt three times, according to some of the witnesses, and going away for a short while returned and expressed a desire according to some of them to shoot Prevatt again if he was not dead. According to defendant, however, he merely expressed an opinion as to his duty to shoot again if the men standing near permitted Prevatt to “get up with that gun in his hand.” As to Prevatt having any pistol at all at the time the defendant attempted to arrest him, there was conflict of evidence between the de
In behalf of the deenfdant there was evidence that the deceased always carried at least one pistol and that upon this occasion he went to the lumber Co.’s yard armed and with the intention to kill the defendant on account of some fancied insult. There was evidence of threats made by the deceased against the defendant’s life.
If the facts set out in the affidavit for continuance had been admitted to be true, that is to say, if it were admitted that the deceased had a pistol in his hand when the defendant attempted to arrest him and during the search or immediately afterward lowered his arm and pointed the pistol at defendant with the warning that the latter must not touch him, would the verdict that was rendered be justified? That is the question which must be answered in order to determine whether there was error in denying the motion for continuance: The deefndant as we said could not be charged with negligence in failing to procure the attendance of the witness or his testimony, and the facts to which it was claimed the absent witness would testify were not sworn to by any other witness save the defendant, and upon a charge of murder in the first degree were material to show the absence of premeditation. It is true that the affidavit does not set forth where and how the information. was obtained that the witness Green would testify as recited, and was, therefore, defective. See Moore v. State, 59
But aside from this point, which we think was fatal to the motion, the proposed evidence being admitted as true, the verdict would have been justified, because under the circumstances the proposed evidence was not admissible to justify the taking of Prevatt’s life by the defendant, but only to show lack of premeditation. The jury acquitted the defendant of murder'in the first degree in which the element of premeditation must exist. The proposed ' evidence Avas not admissible upon the ground of self-defense because' the defendant hot having any authority under the larv to make an arrest, his attempt to de
The office of Sheriff is a very important one; he is invested by law Avith duties, powers and responsibilities Avhich no private citizen may assume or exercise; he is clothed Avith authority of laAv to execute its decrees; in him is represented the majesty of the law, for what he does he must do only at the law’s command; his act must be the act of the laAv, and as such the people honor and respect it.
The person Avho undertakes to perform the duties of deputy sheriff must have proper authority to so act. A deputy duly appointed and authorized under the statute has the same power as the Sheriff appointing him. The statute provides that his bond shall be approved by the County Commissioners before he shall have authority, or as the statute is worded, “shall be allowed to perform any sendee as such deputy.” He who assumes therefore to perform any service as a deputy sheriff should know that he is duly qualified under the law. It does not appear that the deceased made any assault upon the defendant, nor that he was guilty of any disturbance upon the premises, which the defendant had in charge, nor that, if being a trespasser upon the premises, he was requested to leave. As watchman the defendant had the right in the name of his employer to protect the premises from trespassers and use such force as was necessary to evict them, but he had no authority to arrest one and detain him or deprive him of liberty upon the ground
The second and third assignments of error are based upon the court’s ruling in the matter of a question, propounded by the State Attorney to a State’s witness. The
Permitting leading questions is a matter, this court has said, within the trial court’s discretion, and is not reviewable on writ of error. See Coker v. Hayes, 16 Fla. 368; Wood v. State, 31 Fla. 221, 12 South. Rep. 539; Myers v. State, 43 Fla. 500, 31 South. Rep. 275; Reyes v. State, 49 Fla. 17, 38 South. Rep. 257; Falk v. Kimmerle, 57 Fla. 70, 49 South. Rep. 504. The answer, however, was not prejudicial, as there was no intimation as to the person or persons from whom the witness anticipated further trouble, and whether or not he feared more trouble was immaterial.
A witness for the State was asked on cross-examination if he had a pistol there that day, referring to the day Prevatt was killed. The question was objected to by the State, and the objection was sustained. This ruling is made the basis of the fifth assignment of error. There was no error in that ruling. The purpose of the question and its relevancy to the issue is not apparent. Counsel state in their brief that the defendant had the right to show that certain State witnesses were armed, but out of what transaction or situation the right grew is not clearly pointed out. It is said the defendant was a stranger at the place of the homicide, that some of the witnesses had not been there for a long time before, that they had gathered there, knowing that the deceased would be arrested, but what all that argues is not shown'. This court cannot, nor could the trial court assume that the State
A state witness was asked upon cross-examination if he went to' see Walker (a foreman of the Lumber Co.) to ascertain whether the defendant had the right to arrest Prevatt. The State Attorney interposed an objection to the. question, and the objection was sustained. The ruling is made the basis of the sixth assignment of error. Walker was not shown to have the power to authorize the defendant to make arrests of people for misdemeanors without warrant. As has been shown, it was not a question of what the defendant thought his powers were as deputy sheriff, but what they actually were under the law. The question was not in cross of any matter connected with the material facts brought out in the direct examination, nor did it tend to elicit any fact showing motive, interest or animus of the witness. So we think this assignment cannot be sustained.
The eighth assignment of error rests upon a ruling sustaining the State Attorney’s objection to a question asked by the defendant’s counsel of a State witness to
Assignments of error numbered from nine to fourteen inclusive are discussed together. The assignments rest upon rulings excluding questions propounded to State witnesses upon cross-examination. The purpose of the questions seemed to be to elicit information tending to show that the State witnesses had assembled at the scene of the homicide in anticipation of a difficulty between the deceased and the defendant. The argument made m the brief is that the questions propounded were in cross-examination and tended to elicit information connected with the material facts brought out in the direct examination. Whatever may have been the purpose of the questions, the record does not disclose that the inforpiation sought bore the slightest relevancy to the issue. Some of the questions were not even in cross of any matter developed in the direct examination. If there had been
A witness named Dowling was called by the State, who testified that the defendant, on the morning of the day on which the homicide was committed, requested the witness to tell Prevatt that if he went beyond the water pump into the negro quarters of the Lumber Company’s camp that defendant would “have to arrest him, kill or be killed.” On cross-examination the witness said he did not deliver the message to Prevatt. He was then asked if he had not testified at the preliminary trial that he told the deceased that the defendant “asked him not to go down in the .quarters beyond the tank.” The question was objected to by the State upon the ground that it sought to lay a “predicate for an impeachment of matters brought out for the first time on cross-examination.” The objection was sustained, and the ruling is made the basis of the fifteenth assignment of error. There is no
It is admissible on cross-examination to show that a witness has made contradictory statements about a material matter which was made the subject of the examination in chief. But that reversible error was committed in this ruling, we cannot agree with counsel for the defendant. The message only showed the defendant’s state of mind toward the deceased. Other witnesses testified to substantially the same thing concerning the defendant’s intention to arrest the deceased or kill him. Whether the message was delivered or not was immaterial, because as we have shown, the defendant is precluded from the defense of self-defense because it appears that he was the aggressor; that his unlawful act brought about the difficulty — therefore if the message did anger the deceased and provide a motive for assault, it was of no significance because no assault was shown to have been committed by him that justified the defendant in killing him. It thus appears that the defendant’s counsel sought to impeach the witness on cross-examination upon an' immaterial matter which is not allowable. See Adams v. State, 54 Fla. 1, 45 South. Rep. 494; Myers v. State, 43 Fla. 500, 31 South. Rep. 275; Stewart v. State, 42 Fla. 591, 28 South. Rep. 815.
The sixteenth assignment of error is based upon a ruling sustaining the State’s motion to strike a witness’ affirmative answer to the following question: “Q. Did you hear Mr. Stinson say right after the shooting that if they had all done as he said this thing would not have
The defendant, testifying in his own behalf, was asked by his counsel if he had a conversation with the deceased that day, to which he answered, yes. He was then asked: “What was that conversation ?” To this question the State objected, and the objection was sustained. This ruling constitutes the basis of the seventeenth assignment of error. What the conversation was, to what it related, and what bearing it could have had upon the issues in this case, is left for surmise. The record does not disclose. But if it be assumed that it would have disclosed a feeling of hostility on the part of the deceased toward the defendant, it would not have been admissible in aid of the defense of self-defense for the reasons already given.
The defendant was asked by the State Attorney on cross-examination the following question: “Q. Did you know whether or not you had a right to kill a man for a misdemeanor in trying to arrest him, a legal right?” “A. I did not.” The question was objected to by defendant’s counsel, and the objection overruled. They bring the point here as the nineteenth assignment of error. The question was a benefit to the defendant in that it gave him the opportunity of refuting any thought of his shooting merely to enforce or accomplish an arrest, and he promptly availed himself of the opportunity by disclaiming any such knowledge that might have led to such a thought. The question produced no injurious result from the defendant’s standpoint, and so the assignment should not be sustained even .if the question was improper.
M. A. Gordon, a witness for the defendant, was asked if he had been “warning Mr. Stinson about Prevatt.” The question was objected to, and the objection sustained. The defendant’s counsel contend that such ruling constituted the twetieth error. Whatever may have been Prevatt’s mental attitude toward the defendant, the latter was precluded by his own act from using evidence of it in aid of a plea of self-defense. The defendant began the difficulty. His unlawful act brought about a situation which to him doubtless seemed fraught with considerable
The twenty-first, twenty-second, twenty-third and twenty-fourth assignments of error involve the same question as to the defendant’s right to avail himself under the circumstances of the plea of self-defense. Whether Prevatt had a pistol and whether his brother afterward identified the one in the Sheriff’s possession as the property of the deceased, are matters involved in the above mentioned assignments of error. There is no merit in them, and they are not sustained.
The defendant’s counsel moved to strike the testimony of the witness, J. F. Hunt, who was called by the State Theunotion was overruled and the action of the court is assigned as the twenty-fifth error. The ground of the motion was that the testimony was “irrelevant and immaterial and too remote as to the transaction between Prevatt and this defendant.” This witness testified that Prevatt on Monday before he was killed borrowed some moeny from the witness and left his pistol as security, and that he had not redeemed it when he was killed by the defendant. There was evidence that Prevatt owned only one pistol. The purpose of the testimony of the witness, Hunt, was very clear, highly relevant and might have been regarded by the jury as sufficient to prove that the pistol which was found that night near Prevatt after he had fallen had not been dropped there by him. The motion was properly denied.
The twenty-seventh assignment of error involves the question of whether it was material to show that the defendant had been advised that his bond as deputy sheriff had been approved. The twenty-eighth, twenty-ninth and thirtieth assignments of error involve the same question.
The thirty-first assignment of error rests upon the order overruling the motion for a new trial. There are seventeen grounds in the motion of which the third, eighth, ninth, tenth, eleventh, thirteenth and fifteenth are discussed. The third ground involves the question of whether the verdict was contrary to the evidence. The remaining grounds question the correctness of certain instructions to the jury and others which were requested, but refused.
We will dispose of the third ground of the motion first, because the view which we have of the case as disclosed by the evidence will determine what disposition should be made of the remaining grounds of the motion involving the correctness of charges given and refused. We think the evidence amply supported the verdict. The defendant employed as a night watchman by private citizens had also been appointed by the Sheriff of the county as a deputy. A bond had been executed and the oath taken and the papers filed with the County Commissioners, but the bond had not been approved. Therefore under the statute the defendant was not allowed to perform any service as such deputy. The defendant, therefore, was clothed with no official power, had no official character. He was empowered by virtue of his employment to eject trespassers from the company’s premises and to use such force as was reasonably necessary to do so. But the defendant did not seek to eject the deceased as a trespasser, nor does it appear that any question of trespassing by the deceased was involved. If he was on the company’s ground when he was shot, it appears that
Charges given and those requested and refused which are made the bases of the eighth, ninth, tenth and eleventh grounds of the motion for a new trial were upon the law of self-defense and were inapplicable. As to those which were given by the court, however, and many such were giveh covering the subject fully, the defendant cannot complain, as they were all in his favor.
The thirteenth ground of the motion is based upon the following charge given by the court: “A person who attempts to make an unlawful arrest of another person thereby commits a trespass and is an aggressor towards such other person.” By this language the court clearly meant that a person not an officer and having no authority to arrest one commits a wrong upon another if he attempts to arrest such other' person, and is considered the aggressor if a difficulty follows such unlawful attempt. This charge correctly stated the law and was applicable to the facts.
•The fifteenth, ground of the motion rests upon the following instruction: “It’s a crime under the laws of Florida for any person appointed a deputy sheriff to assume to perform any of the duties of a deputy sheriff before qualification according to law.” The court evidently had in mind Section 3507, General Statutes, 1906, Florida Compiled Laws, 1914, which forbids any one to falsely assume or pretend to be a deputy sheriff and take upon himself to act as such; or more likely Section 3732, General Statutes, Florida, Compiled Laws, which prescribes punishment for whoever being appointed to any office as
We have found no error in the record, so the judgment is affirmed.