Ammons v. State
| Decision Date | 16 December 1924 |
| Citation | 102 So. 642,88 Fla. 444 |
| Parties | AMMONS v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Broward County; C. E. Chillingworth, Judge.
Tom Ammons was convicted of murder in the second degree, and he brings error.
Affirmed.
Syllabus by the Court
Verdict of murder in second degree not disturbed if evidence is sufficient to sustain verdict for first degree murder. In the trial of an indictment for murder, a verdict of murder in the second degree will not be disturbed if the evidence is sufficient to sustain a verdict for the higher degree of unlawful homicide.
Right of one attacked to resist, stated. There are two phases of the law of self-defense as defined by our statute: First, one may resist the attack of another to the extent of taking the life of such other person when the latter is attempting to murder the former or commit any felony upon him; second, when one is lawfully defending oneself where there is reasonable ground to apprehend a design in the attacking party to commit a felony or to do some great personal injury to the slayer and there shall be imminent danger of such design being accomplished.
On defense of self-defense, question of apprehension by accused of danger is for jury; conditions to enable accused to rely on self-defense stated. In the prosecution of an indictment for murder, where the defendant sets up the defense of self-defense in that he was defending himself against an attack by the other to commit a felony, and there was imminent danger of the design being accomplished, the question of apprehension by the defendant of danger is for the jury, and the circumstances as they appear to the defendant must be such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necessity for taking life real.
Men do not hold lives at mercy of excessive caution or unreasonable fear of others. Men do not hold their lives at the mercy of excessive caution or unreasonable fears of others.
Fact that one of participants in heated argument puts hand on hip pocket does not as matter of law justify other in taking life. The court will not declare as a matter of law that when two men are in a heated controversy one of them puts his hand on his hip pocket that such act creates in the other justification for taking the life of the former.
One convicted of murder in second degree on evidence sufficient to sustain verdict of murder in first degree cannot complain. Where, in a prosecution of an indictment for murder, the evidence is sufficient to sustain a verdict of murder in the first degree, the defendant may not complain that it was more than sufficient to sustain a verdict of murder in the second degree of which he was convicted.
Motion for new trial, in which exceptions to refusal to give instructions are taken, should be presented by bill of exceptions. Where exceptions are taken in a motion for a new trial to the court's refusal to give requested instructions, such motion should be evidenced to this court by a bill of exceptions.
Exceptions should be taken to identical portion of charge assigned as error; when exception is to entire charge, if it contains single correct proposition, it will be sustained. Exceptions should be taken to the identical portion of charge which is assigned as error. When the exception is taken to the entire charge, if there is a single correct proposition contained in the charge given the entire charge given will be sustained.
Exceptions to refusals to charge as requested must be taken at time thereof. Exceptions to refusals to charge the jury as requested must be taken at the time of such refusals. They cannot be taken to the ruling on a motion for a new trial based on such refusal.
Requisite of instruction on self-defense as to belief of accused that he was in danger, stated. In a trial for murder in the first degree, an instruction upon the law of self-defense should be so framed as to inform the jury that the defendant cannot justify the killing unless he had reason to believe and did believe that it was necessary to save his own life, or to save himself from great personal injury, when his defense is upon that phase of the law of self-defense.
Evidence held sufficient to sustain conviction of murder in second degree. Evidence examined and found sufficient to sustain the verdict.
Brown & Stokes, of Miami, and McCune, Weidling & Hiaasen, of Ft. Lauderdale, for plaintiff in error.
Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.
The plaintiff in error, Tom Ammons, to whom reference will hereinafter be made as the defendant, was indicted for the murder, on December 30, 1923, of W. T. Williams, and on March 20, 1924, convicted of murder in the second degree. He seeks reversal of the judgment on writ of error.
The facts in the case which the evidence tends to prove may be briefly stated. The deceased, who operated a small farm, had employed the defendant to manage it or work upon it upon terms. A disagreement had arisen between them, out of which litigation had grown, resulting in ill feeling between the parties.
The defendant claimed that the deceased owed him money on account of their transactions, and the deceased had refused to come to a settlement.
The latter had on several occasions previous to the day of the homicide made disparaging remarks about the defendant; had threatened to kill him or run him out of the community or ruin him financially. These boastful, ill-advised, scandalous remarks were promptly carried to the defendant by mutual friends. Three or four days before the homicide the wife of the defendant, according to her testimony, met, on the street, the deceased, whom she had known for several years, and who had always spoken to her, 'raised his hat' respectfully, and with whom she had never had any 'unpleasant relations.' Upon meeting him on this occasion, however, when she spoke to him in possing, as she usually did, he met her pleasant sidewalk saluation with the request that she 'kiss his ass,' which seems to have been interpreted to mean that part of his anatomy designated by a different word, called her a 'damn whore,' requested her not to speak to him, and informed her that he was going to get that husband of hers if 'I have to kill him or run him out of the country.' This insult to her and threat against her husband she did not promptly relate to him, but kept back the information for several days. While she testified to this state of facts, she also told the sheriff and a deputy soon after the homicide that she had not seen Mr. Williams in a week or ten days and had not been 'down the street in three or four days.'
Upon the day of the homicide Mrs. Ammons told her husband, so she testified, of her meeting the deceased and his language to her. The information was imparted to defendant that night at home in, or near, Ft. Lauderdale. He came home after dark, between which time and the homicide she imparted to him the information.
The defendant being 'short of cigarettes' went down town to get some. He went in an automobile. Passing near the Gilbert Hotel he saw a Mr. Padgett and stopped the car to speak to him. But he also saw the deceased on the sidewalk in front of the hotel, and, deferring his conversation with Mr. Padgett in order to speak to Mr. Williams, the defendant, who was armed with a pistol which he usually carried in his car, got out of his car, passed Mr. Padgett with a friendly salutation, and going up to Mr. Williams said: 'Poker Bill,' or ; and repeating that statement applied to the deceased a vile epithet and shot him. The deceased backing away from the defendant got behind a barber pole as if he was trying to 'catch something' or 'grasp the pole.' The defendant fired five shots; the first two or three made a smoke in front of the defendant, and, stepping forward out of the smoke, he fired again. Then going up to the deceased, who was behind the barber pole, struck him over the head with the pistol. The deceased was not armed, but had in his pocket two pocket knives.
The defendant's account of the shooting is slightly different. He said: That Williams had threatened, at least three times, to kill him but had never made any attempt to do so. That they had talked on other occasions and nothing happened. That bad relations had existed between them for about a year. The day of the shooting, the defendant's wife told him of Mr. Williams' threat to run defendant out of town, and of Mr. Williams' offensive language to the defendant's wife. That, seeing Mr. Williams on the street that night, defendant got out of his automobile and walking up to Mr. Williams said: That deceased then 'turned around to me,' he said, 'You damned son of a bitch, and he ran his hand under his coat to his hip pocket, and he turned around.' 'I thought he was going to shoot me, and I pulled my pistol and commenced shooting.' The defendant said, because 'Mr. Williams had made threats against my life on about three or four occasions before this, and that was the reason I thought he was going to shoot me.'
The defendant did not go down town that night for the purpose of meeting the deceased. The deceased had said that he carried a pistol 'all the time.' The defendant knew that the 'first three shots' he fired had struck Mr. Williams. The defendant 'pulled his gun' before he thought he 'saw one on' Williams. He thought he saw one in the right hand of deceased after the defendant 'had ...
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