75 Fla. 756 | Fla. | 1918
The plaintiff in error Oliver Ward, hereinafter referred to- as the defendant, was indicted in 1916 by the grand jury of Lafayette county for the murder of Arthur Land which was alleged to have been committed on the 25th day of December, 1915. In November, 1917, the defendant was put upon trial for the offense charged and convicted of manslaughter.- He seeks to reverse the - judgment of conviction and comes here by writ of error.
The errors assigned are numerous and are all based upon rulings of the court upon the admission and rejeo
Arthur Land was killed by the defendant under circumstances which the latter claimed justified him. The defendant was “Quarter boss” at the Standard Lumber Company's mill at Alton, Florida, and a deputy sheriff of Lafayette county. On the night of December 24th, 1915, a negro came to the defendant and told him that there were “some white men over at- Jerry Franklin's house shooting at them (the negroes) and'trying to'make them dance.” The defendant and Otis Hunt went to -Franklin’s house. The defendant went in first and walked up to the fire place where the deceased Arthur Land was standing. According to the defendant he did not know who the man was and “started to look under his hat to see who he was” when the deceased “shoved a pistol out against” the defendant’s stomach, who hit him on the baolc of the head and knocked him down. Mr. Hunt then ran up. According to his testimony Land fell on his face with his arms extended in front of him and with his right arm very. near the fire. Hunt assisted Land to rise by taking hold of the latter’s left arm and placing his- own left hand upon Land’s right side. Hunt “did not notice at that time whether or not Land had a pistol, in his hand” and did not notice it until Hunt saw Land’s hand on Hunt’s shoulder. Further testifying he said: “I do not know where he got that pistol from.” While the two men were standing in this position facing each other Hunt supporting Land whose right hand or arm was on Hunt’s shoulder, the defendant said: Land “pointed a pistol at me over Hunt’s shoulder, or in my direction. I-said ‘Don’t you do' it,’ he did not stop, but kept it right there. I jumped
Assignments of error from one to nine inclusive are based upon exceptions to certain testimony of a witness named Ras Mickler. Mickler testified over the defendant’s objection and exception regularly made and preserved, that a few weeks before .the deceased was killed the witness had a conversation with the defendant in regard to the “Land boys;” that Henry Land and Ward the defendant had had a fight, that there was another Land boy named Lonzo, they would get drunk at night and go into the quarters and “raise much sand.” Oliver Ward was quarter boss and said he was “going to put a stop to it if he had to kill one of the G — d—sons of bitches to see how he looked dead.” The witness was asked by the State Attorney if “Ward at that time” knew the name of any particular one of the Land boys or “were you .talking about the bunch generally.” The reply was “Lands in general.” The witness also testified that the defendant did not at that time indicate any certain one of the Land boys whom he might kill to “see how he looked dead;” that the witness knew only Lonzo Land at that time. On cross-examination defendant’s' counsel said to the witness: “The duty of the quarter boss is to keep order in the quarter?” This statement was interrogatively made and was objected to by the State Attorney and the objection was sustained.
Upon cross-examination by defendant’s counsel the threat against the Lands was again brought out, the witness 'saying that • the defendant “said that he was going to kill some one of them if they did not stop” coming through the quarters and raising disturbances.
The State produced a witness, R. L. Land, who testified that he knew a “bunch of boys” around the community of Alton known as the “Land boys.” This without- objection.' Then over defendant’s objection and exceptions duly- máde, the witness testified that the boys “ran together that “there was a dozen or more right around there-thát were together a whole lot of the time;” thát=his sons Arthur and Henry and Lofizo were included among those . referred to as “the bunch.” On .cross-examination the defendant’s counsel elicited from the witness whát he meant by the boys running together. He said: “they were together a lot of the time, going around together’ and beating about as boys will do.” That he supposed they would get together during the day. as well as at night. That the deceased was the only one of the Land boys who was in the “quarters” that night. The overruling of the defendant’s objection to this, evidence constitutes. the basis of the tenth, eleventh, .twelfth, thirteenth and fourteenth assignments of error. On cross,examination the witness was asked by the defendant’s counsel the. following- question: ‘‘What I want to- get at is this: do you know of your own personal, knowledge that Arthur Land went with the' rest of, the- boys- into the quarters?” The State
We have grouped these assignment's of .error because conceding that the objections and exceptions were duly made and preserved to- each question- as the evidence was developed yet it should be considered- in its entirety to determine its admissibility, which is questioned by. these assignments of error upon several grounds... The evidence was offered to show premeditation -on the- part of the 'defendant -to kill- the deceased. The evidence tended to establish the fact that the' deceased was- the associate of other boys or young men' who went about in a group known as the Land Boys and committed disturbances at night in the neighborhood. A gang of roughs who occasionally invaded the' “q'uhrters’.’ of' the Mill Cojmpany and disturbed the peace with one of whom the “quarter boss and deputy sheriff” had -had a fight. That the resentment of the defendant was aroused against the entire gang or “bunch” as it was- called, and' that he proposed to put a stop to its breaches of the peace in the quarters even if had to resort to extreme measures.
Murder in this State is committed if the killing is unlawful and results from a premeditated design to kill any human being: So if the defendant went to Franklin’s house that night with a premeditated design to kill any member of the - so-called “bunch” or group of young men and pursuant to that design shot and killed the deceased, the evidence was admissible upon the charge of murder even though it was not shown that the defendant knew at the time he went there that the deceased was a -member of the group.- It was also admissible to-show-who'Began the difficulty. It was com
But even if there..was error in the admission of the evidence it was cured by the verdict of the jury which found the defendant guilty of manslaughter thus discarding the State’s theory of a killing from a premeditated design and acquitting the defendant- of the charge of murder. See Bell v. State, 65 Fla. 505, 62 South. Rep. 654; Smith v. State, 66 Fla. 135, 63 South. Rep. 138.
The eighth assignment of error which is based upon the court’s ruling sustaining the State Attorney’s objection to a question propounded to the witness Mickler on cross-examination which sought to elicit information as to the defendant’s duty as “quarter boss,” can not be sustained because while we think the question was a proper, one. at-the-time and should have been answered,
Mrs. Drew Land, the wife of the deceased, testified that she was at R. L. Land’s house the night her husband was brought home. After describing his wounds she said: “After he came out from under the influence of this anesthetic he made a statement to me as to how he felt and his belief as to whether he would live or not. He said he knew that he would never get well and that it would be just two or three days; that he would never (get) over it.” That he never changed his mind. That he lived from Friday night until Tuesday twelve o’clock. “Q. From the time that he came out from under the anesthetic until he died did he express any hopes of recovery, but said all the time he would die from the wounds? Yes sir. Q. While in that condition did he tell you how he got these wounds? Yes sir. Q. What was the attitude of Arthur Land with reference to any hope of recovery from the time that he became consicous until the time of his death? A. He did not have any hopes at all.” The defendant's counsel moved to strike the last answer upon the ground that it was the opinion and conclusion of the witness. The motion was denied and the ruling is made the basis of the fifteenth assignment of error. The witness was then asked if the deceased at any time expressed any hopes of living and the witness answered no. “Q. What did he say with reference to his condition and results of these wounds? A. After he got his consciousness from taking that stuff he said that he would never get well because these wounds would kill him. Q. How long
We think there is no reversible error in any of the rulings which were made the basis of the asignments of error numbered from sixteen to twenty-one inclusive.
The rule, for laying the foundation for the admission of dying declarations, as recognized by this court was fully complied with. It was shown that the deceased not only considered himself in imminent danger but he believed he was without hope of recovery. He said to his wife that he knew he would never get wellj that it “would be just two or three days;” that he would never get over it. His wife said, that he never changed his mind and died in about three days and a half. It also appeared that the declaration were made upon the day the deceased died, and within a few hours of his death which he seemed to realize, from the moment he was carried home, was inevitably approaching. The law considers that a situation so solemn and so' awful creates an obligation equal to that imposed by an oath administered in court to speak the truth. See Dixon v. State, 13 Fla. 636; Savage and James v. State, 18 Fla. 909; Lester v. State, 37 Fla. 382, 20 South. Rep. 232; Green v. State, 43 Fla. 552, 30 South. Rep. 798; Newton v. State, 51 Fla. 82, 41 South. Rep. 19; Copeland v. State, 58 Fla. 26, 50 South. Rep. 621; Fails v. State, 60 Fla. 8, 53 South. Rep. 612.
There is no merit in the objection that a witness was
The discussion of counsel for the defendant upon these assignments is very full and their criticism of the method of examination of the witness quite just. Many of the questions were leading and some not at all clear, but these questions were of a preliminary character and sought to ascertain the belief of the deceased as to his real condition and hope if any of recovery. As to the declarations, they related only to the res gestae. The declarant told where he was, who came in the house, what the defendant and Ward did to him and what was said. See Savage and James v. State, supra; Clemmons v. State, 43 Fla. 200, 30 South. Rep. 699.
The admission of the evidence by the court below does not clearly appear to have been erroneous, so the ruling should not be disturbed. Malone v. State, 72 Fla. 28, 72 South. Rep. 415.
The question of the State Attorney in which he asked the witness, “What did he say he was doing in there?” was objetced to by the defendant. While that method of examining a witness as to dying declarations is not approved, we are not prepared to say the question resulted in the commission of reversible error by the court in overruling the objection to it. If the deceased in his dying declaration had said what he was doing in the house at the time of the assault upon him it would have been ad missible as part of the res gestae. The objection to the question therefore was properly overruled. The witness’ answer however was clearly not responsive to the question. The defendant did not move to strike the answer. The witness said “He was just in there by the fire warming; he was not doing any one any harm at all.” This was the witness’ opinion appar
The answer to the question which is made the basis of the eighteenth assignment was harmless. The witness said she did not hear her husband make any statement about having a pistol.
Much has been said by this court upon the subject of dying declarations. The rule is recognized that great care should be exercised by the trial court in admitting such evidence. The reason for the rule is obvious. Dying declarations are a species of hearsay evidence, the person whose declarations are thus received is not sworn, neither is he subject to cross-examination. The declarations aré made when the declarant is in the presence of death, usually suffering great pain and may speak under more or less emotion, if not excitement, but having been admitted by the court in its discretion these' objections may affect the credibility of such evidence and are matters for consideration by the jury.
Assignments of error numbered from twenty-two to twenty-five inclusive rest upon objections to certain questions propounded by the State Attorney to the witness R. L. Land. The witness had testified that he arrived at the house, where his son was taken after being shot, the following ’ night at about seven or eight o’clock. That the deceased discussed the “difficulty” with his father after stating that (he) the deceased “could not live but would die.” The witness was then asked whether the deceased “asked for or objected to any
The defendant moved to strike the testimony of Mrs. Land and Mr. Land “with reference to dying declarations that are claimed to have been made by Arthur Land.” The grounds urged in support of this motion were the same as those to which reference has been made in discussing Mrs. Land’s testimony. The motion was overruled and the court’s action is made the basis of the twenty-sixth assignment of error. The motion was very broad. It covered all the testimony of the two witnesses relating to the dying declarations of Arthur Land, much of which testimony we have shown to be admissible. The motion should have been restricted to that part of the testimony which was objectionable, otherwise if any part of it was admissible the motion was properly denied. See Freeman v. State, 50 Fla. 38, 39 South. Rep. 785; Putnal v. State, supra; Cook v. State, 46 Fla. 20, 35 South. Rep. 665; Alford v. State, 47 Fla. 1, 36 South. Rep. 436; Thompson v. State, 52 Fla. 113,
The defendant testified.as a witness in his own behalf, He said that he went to Jerry Franklin’s house; that Otis Hunt was with him when the “party came and made this report” to him. He was then asked: “What was it that the party who made the report said to you ?” The question was objected to and the objection sustained. The ruling is assigned as the twenty-seventh error. We think the objection was properly sustained. Counsel for defendant insist that because they did not object to the State witness Hunt’s testimony when he told what the negro said to the defendant, the court should- not have sustained the State’s objection to the question which sought to elicit from the defendant his version of the negro’s “report.” They cite no authority either textbook or decision in support of such contention, and as we recall none we hold the point not well taken.
The next assignment of error is the thirtieth, the twenty-eighth and twenty-ninth having been abandoned. It is insisted that the following charge given to the jury was erroneous: “If the evidence in this, case should convince the jury beyond a reasonable doubt and to a moral certainty that the defendant in Lafayette County, Florida, at any time within two years immediately preceding the finding of this indictment unlawfully killed Arthur Land in the manner and by the means charged in this indictment and the jury should not find from the evidence beyond a reasonable doubt that such killing was perpetrated from and with a premeditated design on the defendant’s part to effect the death of Arthur Land, and the jury should not find from the evidence beyond a reasonable doubt that such killing was perpetrated by an act immediately dangerous to another and evincing a
The court then chargegd the jury upon the law of self defense. This charge is the subject of the next assignment of error.
We deem it unnecessary to set out tire charge at length. The counsel for defendant find only one small fault in it. In referring gto the imminency of danger, the court used the expression “present imminent danger.” The statute, Section 3203 General Statutes, in defining justifiable homicide uses the phrase “imminent danger.” The statute provides that a homicide, when committed by one in lawful self defense and there shall be a reasonable ground to apprehend a design to commit a felony or do some great personal injury “and there shall be imminent danger” of such design being accomplished, is justifiable.
In the case of Furlow v. State, 72 Fla. 464, 73 South. Rep. 362, tried by the .same judge who presided at the trial of this case, we expressed the oxdnion that the words “imminent, immediate and then present danger” which were substituted in a charge upon self defense for the statutory words “imminent danger” were erroneously used and the judgment was reversed. We undertook to point out that “imminent” danger was not necessarily “immediate and then present.” That in the case then being considered Sallie Furlow, who shot and killed
The thirty-second and thirty-third assignments of error attack two charges which dealt' with the defendant’s belief in the existence of danger to himself- and the right to interpose the defense of self defense when free from fault in bringing on the difficulty. It is unnecessary to set out the charges in full. The criticism of them in counsel’s brief we think is not correct. See Danford v. State, 53 Fla. 4, 43 South. Rep. 593. The charge deal
If it was intended to emphasize the theory that the defendant must have “an honest belief” in the existence of danger, the charge was correct because if he could see that the appearances were deceptive and he was in no real danger, he could not claim the right of self defense merely because a reasonably prudent or cautious man might have been deceived by the false appearance of danger. Sylvester v. State, supra. The other charge was free from error and was applicable to the facts. The principles announced have frequently been sustained by this court. See Kennard v. State, 42 Fla. 581, 28 South. Rep. 858; Padgett v. State, 40 Fla. 451, 24 South. Rep. 145; Bassett v. State, 44 Fla. 12, 33 South. Rep. 262; King v. State, 54 Fla. 47, 44 South. Rep. 941.
The charge of the court upon the subject of a reasonable doubt was correct. See Vasquez v. State, 54 Fla. 127, 44 South. Rep. 739; Woodruff v. State, 31 Fla. 320.
The thirty-fifth assignment of error as it appears in the record is based upon the court’s refusal to give the following charge requested by the defendant: “The reasonableness of the belief or fear of the. existence of such peril as will excuse the killing is for you to determine from all the facts and circumstances adduced. in evidence.” In counsel’s brief complaint is made that the above charge was given and argument made, to show that it was bad. We have not been referred to the page in the record where the above charge appears to have been given, but it seems to have been requested by defendant and refused.
As the court’s refusal to give the requested instruction seems to be in consonance with counsel’s view that the charge “is not in accordance with the law of the State,” the assignment of error should fail. We think that the court probably refused the instruction because the substance of it had been fully covered in other charges.
The defendant, requested the court to charge the jury upon their duty to ascertain and decide from the evidence whether the defendant at the time he fired the fatal shot was surrounded by such a condition of affairs as made it from his standpoint reasonable for a cautious man to believe that it was necessary to fire the fatal shot. The court gave the charge but interlined words directing the jury to first determine whether the defendant was the aggressor in the difficulty and if they found he was not then to decide whether he acted as a cautious man would.
The substance of the instruction as requested was given in the general charge. The amendment made by the court did not render it bad. It is insisted that the
It is required that the instructions to the jury be applicable to the evidence. See Melbourne v. State, 51 Fla. 69, 40 South. Rep. 189; Starke v. State, 49 Fla. 41, 37 South. Rep. 850; Kelly v. State, 44 Fla. 441, 33 South. Rep. 235; Danford v. State, 53 Fla. 4, 43 South. Rep. 593.
Ho fault can be found with the charge upon the ground that it was not based upon facts in evidence. There was ample evidence to show that the killing of Land was unnecessary, deliberate, cruel and that the defendant was the aggressor from the moment he entered the house until he fired the shot over the shoulder of his friend Hunt who at the time was supporting the deceased upon his feet.
The following instructions were requested by the defendant to be given, but the court refused them, and such refusal is assigned as the thirty-seventh and thirty-eighth errors: 1st. “The Court charges you- that the nature of the weapon or instrument used in an assault by one person upon another and the manner of its use, are important • considerations for the jury in a prosecution against the person assaulted for killing his assailant, in determining whether the slayer acted in necessary self defense. And that an assault with a deadly weapon raises a presumption of an intent to kill which justifies the person assaulted in using a deadly weapon in defending himself. And if a weapon’s use by one person in assaulting another and the manner of its use was such as to be reasonably calculated to produce death or great bodily harm, an intent to do so, which will warrant killing in self defense is presumed.” 2nd.
The subject of self defense was fully and correctly covered by the court in the charges given both upon the court’s own motion and at the defendant’s request.
The first instruction requested and quoted above is not the law as it obtains in this State. The question of necessity for the fatal blow or shot is to be determined by the jury from the evidence and the jury is to say whether a prudent and cautious person under the circumstances would have deemed the shot necessary.' The requested instruction makes the fact of an assault with a deadly weapon as a matter of law justification for taking life. The second instruction was fully covered in proper form by the court in other charges.
The court instructed the jury that a person occupying the position of Quarter Boss is clothed with no legal authority to make arrests and has no more power in that regard than any other private citizen. There was no error in that charge.
The following charge was given and forms the basis of the fortieth assignment of error: “I further charge you, gentlemen of the jury, that a deputy sheriff or other officer has no authority to molest, apprehend or attempt to arrest any person, although such person may be guilty of a breach of the peace, unless such offense was committed in the presence of the deputy sheriff or amounted to a felony, unless the deputy sheriff or other officer is authorized to make such arrest by reason of a
The forty-first assignment of error rests upon the following charge: “I further charge you that if you believe beyond a reasonable doubt from the evidence in in this; case that Oliver Ward was what is known as quarter boss and also deputy sheriff and you further believe that he, having been advised of some disturbances or breaches of the peace, lawfully went to the house where Arthur Land was at the time of the difficulty and if you further believe that at the time of his arrival that Land was engaged in no breach of the peace or other violation of the law, and if you further believe that Ward approached Land and without provocation, ’ justification or excuse struck Land, and you further believe, that a difficulty ensued by reáson of and as a result of such striking and in that difficulty Arthur Land was killed by Oliver Ward, then I charge you that Ward cannot plead self defense in justification of his act brought about by his own wrong and to meet á necessity created by his being the aggressor 'in a difficulty brought' about by his wrongful and unlawful act, hnd you Shall find the defendánt guilty óf süch dégree of
The forty-second assignment of error attacks the following instruction: “The Court further charges you that a person who is the aggressor in bringing on the difficulty, the one who strikes the first blow without legal right and later finds himself in danger of losing his own life in the same difficulty cannot avail himself of the legal, right of self defense.” No error was committed in giving it. Considered in connection with the instruction upon the law of self defense and in view of the evidence in the case it was proper.
The forty-third and last assignment of error attacks the verdict upon the ground that it was not supported by the evidence. A discussion of the evidence would be to no purpose. It was amply sufficient to support the verdict.
We have found no error in the trial of the case so the judgment is affirmed.