Alday v. State

Decision Date04 March 1952
Citation57 So.2d 333
PartiesALDAY v. STATE.
CourtFlorida Supreme Court

Ramsey & Leath, Panama City, for appellant.

Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.

TERRELL, Justice.

Appellant was tried and convicted of murder in the first degree without recommendation. The death penalty was imposed, hence this appeal. The death was the product of a fracas which arose from these facts: Mose Hill, a deputy sheriff of Bay County, was advised that appellant and Kizzie Pelt, his housekeeper, were drunk at his home in Port Saint Joe. Hill proceeded to appellant's home without a warrant and undertook to arrest Kizzie Pelt. An altercation between appellant and Hill ensued and was followed by an exchange of blows. Hill abandoned the encounter and went to his automobile in front of the house where he secured handcuffs or some other articles and returned to the house. The affray was picked up where it was abandoned, several blows were exchanged when Hill whipped out his pistol and shot appellant in the breast. Appellant returned the compliment by striking Hill over the head with a 30-30 gun barrel. This blow was followed by several others from which Hill died about six hours later.

Several questions are urged for determination, the errors on which some of them were predicated may not have been seasonably preserved but this is a capital case, the responsibility to review which the law imposes on this court. It is not amiss to point out at the outset that it was one of those unfortunate tragedies that might have as well been avoided by the exercise of the slightest discretion on the part of either of the participants.

It is evident that when Hill arrived at appellant's home he found appellant and Kizzie Pelt in a drunken condition but so far as the record discloses they were not disturbing the peace. Nor is there is suggestion that they were guilty of any crime that would have authorized Hill to enter the home without a warrant of authority to do so. A mission to check on a pair of drunks is not so urgent as to relieve a deputy sheriff from arming himself with a warrant when he proceeds to one's home to make an arrest. Section 901.15, F.S.A. defines the circumstances under which a sheriff or police officer may arrest without a warrant but we do not think any such circumstances existed in this case. The law authorizes one whose home is assaulted without lawful authority to use such force as is necessary to repel the assailant. Wilson v. State, 30 Fla. 234, 11 So. 556, 17 L.R.A. 654; Danford v. State, 53 Fla. 4, 43 So. 593; Russell v. State, 61 Fla 50, 54 So. 360; Roberson v. State, 43 Fla. 156, 29 So. 535, 52 L.R.A. 751.

Some of these cases hold that an arrest made without a warrant amounts to a trespass and affords the person arrested such provocation to resist that if murder is committed in doing so it will be reduced to manslaughter. When an arrest is attempted in the manner shown here the arrested party may use reasonable force proportionate to the injury attempted to effect his escape but he is not permitted to use more. If from a result of sudden passion he uses more, the offense is manslaughter, but if it results from premeditation it is murder. In this case appellant was shot in the breast when use of the gun barrel by his assailant was imminent. Both were brandishing deadly weapons. In this case the parties exemplified a reckless disregard of human life. Hill entered appellant's home without lawful authority and the latter used more force than was necessary to eject him. In our view the most the evidence will support is manslaughter.

The judgment is accordingly reversed with directions to enter a judgment and sentence of manslaughter.

Reversed with directions.

SEBRING, C. J., and THOMAS, HOBSON and MATHEWS, JJ., concur.

CHAPMAN and ROBERTS, JJ., dissent.

CHAPMAN, Justice (dissenting).

The appellant, Emanuel Alday, was indicted by a grand jury of Gulf County, Florida, for the crime of murder in the first degree for the killing of Mose Hill on May 10, 1950. He was duly arraigned and later placed upon trial before a jury in Gulf County and the jury, after hearing all the evidence, and instructions upon the law as given by the trial court, returned a verdict of guilty as charged, whereupon the trial court imposed the death penalty and Alday appealed.

The record discloses that the appellant Alday, for some months prior to May 10, 1950, lived in a small house or shack then situated on the western outskirts of the Town of Port St. Joe. The appellant had as his housekeeper therein one Kizzie Pelt, who was the mother of four children not related to the appellant. The eldest of the four children was a daughter and approximately seventeen years of age who had married a man by the name of Armstrong. Armstrong on May 10, 1950, was in legal custody or was confined to a jail at Port St. Joe. The remaining children were 13 and 9 and the age of the fourth child is not clear from the record. Kizzie Pelt and her three unmarried children, Estelle Pelt Armstrong and husband and the appellant resided or made their home in the shack or small house near the canal on the road leading west out of Port St. Joe.

On the morning of May 10, 1950, the appellant left his home and went to Port St. Joe and spent some few hours and was returning about the middle of the afternoon when he met Estelle Pelt Armstrong going into town for the purpose of taking cigarettes to her husband then...

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13 cases
  • Rodriguez v. State
    • United States
    • Florida District Court of Appeals
    • December 22, 1983
    ...(Fla. 3d DCA 1978), cert. denied, 367 So.2d 1125 (Fla.1979); (4) by the use of excessive force to resist an unlawful arrest, Alday v. State, 57 So.2d 333 (Fla.1952); Roberson v. State, 43 Fla. 156, 29 So. 535 (1901); and (5) with neither premeditation nor depravity, Cook v. State, 46 Fla. 2......
  • Weiand v. State
    • United States
    • Florida Supreme Court
    • March 11, 1999
    ...may be important in the context of defending the home. See supra note 6; Falco v. State, 407 So.2d 203, 208 (Fla. 1981); Alday v. State, 57 So.2d 333, 333 (Fla.1952); State v. White, 642 So.2d 842, 844 (Fla. 4th DCA 1994). However, the privilege of nonretreat from the home stems not from th......
  • State v. Saunders
    • United States
    • Florida Supreme Court
    • November 12, 1976 the time of the alleged offense. At that time, Florida law permitted citizens forcibly to resist unlawful arrests. Alday v. State, 57 So.2d 333 (Fla.1952); Gay v. State, 147 Fla. 690, 3 So.2d 514 (1941); Burgess v. State, 313 So.2d 479 (Fla.2d DCA 1975) Merits not reached 326 So.2d 441 (......
  • Davis v. State
    • United States
    • Maryland Court of Appeals
    • February 11, 1954
    ...v. State, 46 Tenn. 283, 291-292; Sanders v. State, 181 Ala. 35, 61 So. 336; Mullis v. State, 196 Ga. 569, 27 S.E.2d 91, 98-99; Alday v. State, Fla., 57 So.2d 333; and State v. Kuykendall, 37 N.M. 135, 19 P.2d 744, 746; John Bad Elk v. United States, 177 U.S. 259, 20 S.Ct. 729, 44 L.Ed. 874;......
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