Barkley v. State
| Decision Date | 22 December 1942 |
| Citation | 152 Fla. 147,10 So.2d 922 |
| Parties | BARKLEY v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied Jan. 11, 1943.
Appeal from Circuit Court, Dade County; George E. Holt judge.
Wallace Ruff and Hendricks & Hendricks, all of Miami, for appellant.
J. Tom Watson, Atty. Gen., and Woodrow M. Melvin and John C. Wynn Asst. Attys. Gen., for appellee.
Trial of appellant on an indictment charging him with murder in the first degree ended with a verdict convicting him of manslaughter.
The question for our determination present (1) the sufficiency of the evidence; (2) the admissibility of testimony of a statement made by the accused; (3) the propriety of the court's action anent a map which defendant attempted to have introduced; (4) the correctness of the order refusing defendant's requested charges, five in number; and (5) the validity of two instructions given by the court.
The deceased died of a wound from a pistol ball which entered his left cheek and lodged near his ear. He also suffered a wound and a powder burn between the thumb and index finger of his right hand.
We will not detail the actions of the defendant and the deceased in the altercation and the consequent death, but will relate so much of their conduct as is necessary to determine the sufficiency of the evidence to support the verdict. The deceased was standing in a building known locally as 'The Mexico' when the defendant entered and asked him to go outside. Upon reaching the street they engaged in a dispute and blows were passed between them. The defendant brandished a revolver whereupon the deceased retreated to the building and fled through it pursued by the defendant. They met again in the rear yard where they struggled and fell to the ground, the defendant underneath the deceased. While they were in this position defendant's gun fired and the mortal wound was inflicted. This, briefly, is the story told by the witnesses for the State.
It is the appellant's contention that at this stage of the trial the court should have granted the motion to acquit him because the State had failed to establish his guilt of any offense beyond a reasonable doubt. It is significant that the encounter had its inception when the defendant invited the deceased from the building into the street, but it is more important that when a revolver was displayed the deceased left the scene and retreated with the defendant in hot pursuit. The jury could well have found that the latter provoked the difficulty and when it had ended, instead of withdrawing from the scene, chased the defendant and renewed the combat. In view of these actions he could hardly be said to have been free from fault. Another fact which condemns his conduct is the nature of the wounds which were received by the deceased. Not only was his victim fatally shot, but the flesh between the index finger and thumb of deceased's right hand was torn and burned, which clearly indicates that at the time he was attempting to protect himself from a weapon in the hand of his assailant. The description of the wounds refutes the suggestion that he could have had control of the gun when it was discharged. We think there was ample evidence to withstand a motion for a verdict finding the defendant innocent.
When the motion was denied the defendant gave his version of the affray. He admitted he called the victim out of the building and that as soon as they reached the street he asked him, 'What kind of lies are those you have been telling on me?' He said that the deceased then hit him and they exchanged blows. He admitted the chase through the building and into the rear yard. There he testified, the deceased turned on him and knocked him down. While they were struggling (he with his back to the ground and the deceased on top) the pistol fell from his pocket and during the contest for possession of it the deceased was wounded.
It seems to us that the salient facts in the case may be narrowed to the character of the wounds received, the identity of the aggressor and the pursuit. The first of these was not contradicted. The defendant by his own testimony established the facts that he called the deceased from the building and charged him with lying. He admitted that when his victim ran he pursued. Obviously it was his purpose to continue the difficulty. There is no question either that the weapon was his. These important elements of the State's case were emphasized by the story of the defendant.
There is some dispute about whether the yard back of the building was entirely closed, but it seems to us a fair deduction from the testimony that it was so nearly enclosed that when the deceased reached it in his retreat he felt at bay.
Appellant insists that the homicide was accidental, hence, the verdict unjustified. It is our view that an examination of the statute, Section 7141, C.G.L.1927, Section 782.07, Florida Statutes, 1941, denouncing 'The killing of a human being by the act * * * of another, in cases where such killing shall not be * * * excusable homicide * * *' and a comparison of it with Section 7136, C.G.L.1927, Section 782.03, Florida Statutes, 1941, defining 'excusable homicide', lead to the inescapable conclusion that the essential elements of the former were proven and that none of the ingredients of excusable homicide, as defined in the latter, could be deduced from the testimony which the jury heard.
Considering the evidence at the time the motion for an affirmative verdict was made, or even after the defendant had completed his testimony, there was complete justification for the conviction.
The next question is the challenge of the court's action in overruling the defendant's objection to testimony offered by the State about statements made by him shortly after his arrest giving his account of the affair. It is appellant's theory that these were confessions for the introduction of which no proper predicate was laid. This position is unsound. We have often discussed the...
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Diecidue v. State, 30913
...the same subject. Driver v. State, Fla.1950, 46 So.2d 718; Higginbotham v. State, 155 Fla. 274, 19 So.2d 829 (1944); Barkley v. State, 152 Fla. 147, 10 So.2d 922 (1942); Smith v. State, 149 Fla. 511, 6 So.2d 383 'When considered with the other instructions, we cannot hold this instruction e......
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Johnson v. State
...rebuttal testimony, it was within the power of the trial judge to permit same. Kirkland v. State, 86 Fla. 64, 97 So. 502; Barkley v. State, 152 Fla. 147, 10 So.2d 922; Johnson v. United States, 5th Cir. 1953, 207 F.2d 314; Dickerson v. State, Okl.Cr.1966, 422 P.2d 213. A witness for the Sta......
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Territory Hawai`i v. Legaspi
...405, 173 So. 407;People v. Zirbes, 6 Cal. [2d] 425, 57 P. [2d] 1319; Wymer v. People, 114 Colo. 43, 160 P. [2d] 987; Barkley v. State, 152 Fla. 147, 10 So. [2d] 922;People v. McCrea, 303 Mich. 213, 6 N. W. [2d] 489, cert. denied; McCreav. People of State of Michigan, 318 U. S. 783, 63 S. Ct......
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Diecidue v. State, 941
...on the same subject. Driver v. State, Fla.1950, 46 So.2d 718; Higginbotham v. State, 1944, 155 Fla. 274, 19 So.2d 829; Barkley v. State, 1942, 152 Fla. 147, 10 So.2d 922; Smith v. State, 1942, 149 Fla. 511, 6 So.2d When considered with the other instructions, we cannot hold this instruction......