Sloan v. State
| Citation | 69 So. 871,70 Fla. 163 |
| Parties | SLOAN v. STATE. |
| Decision Date | 13 July 1915 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Volusia County; James W. Perkins, Judge.
Ed Sloan was convicted of murder in the first degree, and brings error. Reversed, because of refusal to give requested instruction on murder in the second degree, to which TAYLOR C.J., dissents.
Syllabus by the Court
An indictment in the usual form, charging murder to have been committed with a premeditated design to effect the death of the person slain, is sufficient under the statute to charge murder in the first degree, regardless of whether the murder was committed in the perpetration of any of the felonies mentioned in the statute such as robbery, rape, arson or burglary, or otherwise. The perpetration, or attempt to perpetrate, any of the felonies mentioned in the statute during which perpetration or attempt a homicide is committed stands in lieu of and is the legal equivalent of that premeditated design to effect the death that otherwise is a necessary attribute of murder in the first degree. In such case it is only necessary to make the charge in the ordinary way, to the effect that the homicide was committed with a premeditated design to effect the death of the person slain, and then show the facts in evidence, and if they establish that the homicide was committed in the perpetration, or attempt to perpetrate any of the felonies named in the statute, this will be sufficient to convict of murder in the first degree.
It is proper in a trial, under an indictment which only charges murder in the usual form, to instruct the jury that if the homicide was committed in an attempt to commit robbery, the defendant was guilty of murder in the first degree. And it is not error to give such instruction because the indictment tendered no such issue as robbery.
COUNSEL Tom B. Stewart, of De Land, for plaintiff in error.
T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
By writ of error the defendant below, Ed Sloan, brings here for review his conviction and death sentence for the crime of murder in the first degree in the circuit court of Volusia county.
We will consider only such assignments of error as are argued and presented in the very able briefs of counsel for the plaintiff in error, who has exhibited in such briefs great ingenuity, industry, and research, and we shall consider them in the order in which they are presented.
The alleged error first presented is the fifth assignment of error predicated on the giving by the court to the jury of the following charge:
'If you believe from the evidence beyond a reasonable doubt that the defendant, Ed Sloan, in the county of Volusia and state of Florida, at any time prior to the finding of the indictment, shot and killed one Rosa Harris with a pistol, as charged in the indictment, and that at the time of said killing the said Ed Sloan was engaged in the attempt to perpetrate robbery upon the said Rosa Harris, then it will be your duty to find him, the defendant, guilty of murder in the first degree, as charged in the indictment.'
The contention in support of this assignment is that it is foreign to the issues presented by the indictment in the case; that said indictment in a single count charges simply that the defendant committed said homicide with a premeditated design to effect the death of the deceased, saying nothing as to any attempt at robbery of the deceased. Our statute (section 3205, General Statutes of 1906) defines murder in the first degree as follows:
'The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary, shall be murder in the first degree, and shall be punishable with death.'
The contention of the plaintiff in error is that this statute defines two distinct classes of murder in the first degree, the first class requiring that the killing must have been done with a premeditated design to effect the death of the person killed, or of some human being, and that the indictment in such class must allege such premeditated design, and that in the second class the killing must have been done in the perpetration of or attempt to perpetrate one of the named felonies, arson, rape, robbery, or burglary, and that it is necessary in such latter class that the indictment should allege that the homicide was committed in the perpetration of, or attempt to perpetrate, such named felony; that having no allegation to the effect that this homicide was committed while perpetrating, or attempting to perpetrate, the felony of robbery, the charge complained of was out of place and was erroneously given; that the indictment against him was fatally faulty in this respect in not alleging anything about the homicide being committed while an attempt was being made to rob the deceased; that under the indictment as framed he could not be convicted on proof that robbery of the deceased was the motive for the crime, that otherwise it would be an invasion of his rights under the eleventh section of the Declaration of Rights of our Constitution, to the effect that in----
'all criminal prosecutions the accused * * * shall be heard by himself, or counsel, or both, to demand the nature and cause of the accusation against him.'
These contentions seem to be supported by the courts of the state of Arkansas in Cannon v. State, 60 Ark. 564, 31 S.W. 150, 32 S.W. 128, and in Rayburn v. State, 69 Ark. 177, 63 S.W. 356. But the courts of Arkansas seem to stand alone in so holding. All of the other states whose courts have passed upon the question hold the reverse of the Arkansas doctrine.
In State v. Meyers, 99 Mo. 107, 12 S.W. 516, it is held that:
In the case of State v. McGinnis, 158 Mo. 105, 59 S.W. 83, it was held that:
In the case of State v. Johnson, 72 Iowa, 393, 34 N.W. 177, it is held that:
'A defendant may be found guilty of murder in the first degree upon the finding that he killed the decedent in the perpetration of robbery, without the allegation of that fact in the indictment.' State v. Foster, 136 Mo. 653, 38 S.W. 721; Commonwealth v. Flanagan, 7 Watts & S. (Pa.) 415; State v. Weems, 96 Iowa, 426, 65 N.W. 387: Cox v. People, 80 N.Y. 500; People v. Giblin, 115 N.Y. 196, 21 N.E. 1062, 4 L. R. A. 757; People v. Flanigan, 174 N.Y. 356, 66 N.E. 988; Reyes v. State, 10 Tex.App. 1; Roach v. State, 8 Tex. App. 478.
See the authorities cited in the copious notes to the case of People v. Sullivan, 173 N.Y. 122, 65 N.E. 989, as reported in 63 L. R. A. 353, 93 Am. St. Rep. 582; Wharton on Homicide (3d Ed.) § 574, p. 875 et seq., and authorities cited.
We cannot agree with the Arkansas court upon this question, but are of the opinion that the...
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