Alvarez v. State

• Decision Date: 18 October 1899
• Citation: 41 Fla. 532,27 So. 40
• Parties: ALVAREZ v. STATE.
• Court: Florida Supreme Court

27 So. 40

41 Fla. 532

ALVAREZ v. STATE.

Florida Supreme Court

October 18, 1899

Error to circuit court, Bradford county; Rhydon M. Call, Judge.

Edward Alvarez was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Counsel for the prosecution in a criminal case are not bound to introduce all the witnesses whose names are indorsed upon the indictment, and who are shown by the state's evidence to have witnessed the commission of the offense.

2. A general assignment of error alleging error in giving or in refusing to give a number of instructions asserting separate and distinct propositions of law, will be overruled if any one of the instructions so embraced in such assignment be found in the one case to have been properly given, and in the other properly refused.

3. An instruction in a criminal case, which puts the burden upon the state of negativing beyond a reasonable doubt defensive matter, the burden of affirmatively showing which is upon the defendant, and that, too, whether he affirmatively establishes such matter by proof or not, is properly refused.

4. Though the danger need not be actual, nor the necessity to kill real, to justify a homicide in self-defense, yet the circumstances surrounding, and as they appear to, the slayer at the time he does take life must be such as would induce a reasonably cautious man to believe that the danger was actual, and the necessity real, in order that the slayer may be justified in acting upon his own belief to that effect.

5. Evidence examined, and found sufficient to support the verdict for murder in the second degree.

COUNSEL John E. Hartridge and Wills & Long, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

CARTER J.

Plaintiff in error was indicted for murder in the first degree at the fall term, 1894, of the circuit court for Bradford county. During a subsequent term, held in March, 1899, he was arraigned, and pleaded not guilty. Upon the trial, had at the same term, he was found guilty of murder in the second degree, and from the sentence imposed sued out this writ of error.

1. The first assignment of error relates to the ruling of the circuit court whereby it refused defendant's motion to compel the state attorney to call as witnesses for the state all the persons whose names were indorsed upon the indictment, and who were shown by the state's evidence to have witnessed the homicide. This ruling is fully sustained by the decision of this court in Selph v State, 22 Fla. 537.

2. The second assignment of error reads as follows: 'The court erred in giving the charges numbered 5 and 10, as appears on pages 37 and 38 of the record.' This assignment is general, embracing more than one instruction given by the court. These instructions assert distinct propositions of law, and under our rulings we will examine no further than to ascertain that one of them was properly given. Shiver v State (decided at the present term) 27 So. 36, and authorities therein cited. The instruction numbered 5 complained of, was substantially in the language of our statute defining murder in the second degree, and it was preceded by others defining justifiable and excusable homicide and murder in the first degree, and succeeded by others defining manslaughter, premeditated design, and the right of self-defense; and the jury were told that, if the evidence warranted it, they might convict the defendant of murder in one of its degrees or manslaughter. The instruction was as follows: 'The unlawful killing, when perpetrated by an act eminently dangerous to another, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree.' The objection urged is, not that it asserts an incorrect proposition of law, but that it was not applicable to any phase of the evidence. Inasmuch as we hold that the evidence was sufficient to sustain the verdict for murder in the second degree, it is quite evident that this instruction was applicable to the evidence, and that the court committed no error in giving it.

3. The third assignment of error reads as follows: 'The court erred in refusing to give the charges numbered from 4 to 20, inclusive, as requested by plaintiff in error, as appears on pages 38 to 48, inclusive, of the record.' This assignment is also general, embracing 17 instructions refused. Many of these proposed instructions assert distinct propositions of law, and, according to the authorities cited supra, we examine no further than to ascertain that one of them was properly refused. The sixth is as follows: 'The killing of a human being, without the authority of law, by poison, shooting, stabbing, or any other means, is either murder, manslaughter, or excusable or justifiable homicide, according to the facts and circumstances of each case. I therefore charge that under the statute of Florida in reference to homicide it is not enough to show that the homicide is unlawful. The state must prove to you beyond a reasonable doubt that the homicide was not only unlawful, but the burden of proof is on the state further to show that, according to the facts and circumstances of the case, the homicide was also not justifiable or excusable.' This instruction was properly refused, because it 'puts the burden upon the state of negativing beyond a reasonable doubt defensive matter, the burden of affirmatively showing which is upon the defendant, and that, too, whether the defendant affirmatively establishes such matter by proof or not.' Padgett v. State, 40 Fla. 451, 24 So. 145.

4. The remaining assignments of error, based upon the order overruling defendant's motion for a new trial, question the sufficiency of the evidence to support the verdict found. The state examined four witnesses, two only of whom claimed any knowledge of the facts attending the homicide. The defendant offered no testimony. It appears from the state's evidence that at the time of the homicide the defendant was 16 or 17 years of age, and the deceased, Samuel Hilliard, about 55 years of age, somewhat taller, and a little heavier than defendant. None of the witnesses knew of any ill will between the parties. The homicide occurred between 12 and 1 o'clock, May 21, 1894 and about two hours prior thereto the deceased and his adult son, Marion, were in the latter's field, when the defendant approached them, and asked Marion to fight him. Marion told him he had done nothing for defendant to fight him for; that he had been sick for a week, and that defendant was a minor; but the latter would make no reply except, 'You have got me to fight.' During the same morning--whether before or after this conversation is not stated--the defendant told one John Whitehead that he and Marion Hilliard were to meet at 12 o'clock, at a certain place in the woods, near a neighborhood road, about half way between where deceased and defendant lived, for the purpose of having a fair fight, and requested Whitehead to go with him as his friend. Whitehead and one Henry Tison had started to the appointed place, when they met defendant, who said he had started back after them. These parties all went to the appointed place, and Whitehead and Tison sat down at the root of a tree. Shortly afterwards deceased came up, and asked, 'Is this the place for the battle?' Defendant replied, 'This is the place.' Deceased said to defendant, 'I think you had better drop this at what it is,' and, turning to Whitehead, inquired, 'Don't you think so, Whitehead?' to which the latter replied, 'Yes, I think it would be best.' The defendant thereupon cursed the deceased, applying...