Barnhill v. State

• Decision Date: 19 December 1908
• Citation: 56 Fla. 16,48 So. 251
• Court: Florida Supreme Court
• Parties: BARNHILL v. STATE.

48 So. 251

56 Fla. 16

BARNHILL v. STATE.

Florida Supreme Court

December 19, 1908

Headnotes Filed February 3, 1909.

In Banc. Error to Circuit Court, Wakulla County; John W. Malone Judge.

Miley G. Barnhill was convicted of murder in the first degree, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A fact asserted in a motion for new trial is not self-substantiative before the appellate court, but it must be authenticated otherwise in the transcript of record.

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 could not 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.

An instruction in a trial for murder held properly refused because it failed to hypothesize defendant's imminent danger.

On a prosecution for murder, a requested instruction upon the law of self-defense was properly refused because it ignored the necessity of the defendant to take the life of the deceased in order to save his own life.

An instruction is properly refused when the facts postulated therein do not warrant a verdict of not guilty.

An appellate court has no original jurisdiction to set aside verdicts and grant new trials because of the insufficient evidence to sustain the verdicts. Such court acts only upon a ruling of the trial court refusing a new trial upon that ground where such ruling is erroneous; and, in determining this question the evidence upon which the verdict of the jury and the ruling of the court below are predicated will be considered. If there is evidence legally sufficient to support the verdict, and the verdict has been approved by the trial judge, the appellate court will not disturb it, though there be conflicts in the evidence, unless the preponderance of the evidence is such that the jury must have been improperly influenced to render the verdict.

A past quarrel or encounter, if sufficient time for the cooling of passion has transpired, will not reduce the killing from murder to manslaughter.

When a man has been threatened, he is to judge from the circumstances by which he is surrounded, and as they appear to him; but, when he acts upon appearances and takes the life of his fellow man, he does it at his peril, and he cannot justify such killing, unless there are circumstances which would induce a reasonably cautious man to believe that it was necessary to save his own life, or to save himself from great personal injury.

When a man has been threatened, he may go wherever his legitimate business calls him, but he had not the right to lie in wait for and slay his adversary. Neither may one who seeks a person who intends to kill him, or otherwise brings the danger upon himself, avail himself of the plea of self-defense.

In order that a person may be convicted of murder in the first degree, he must have acted from or in pursuance of a premeditated design to effect the death as alleged. Proof of a mere intent to kill would not be sufficient. Such design must precede the killing by some appreciable space of time but the time need not be long. It must be sufficient for some reflection or deliberation upon the matter, for choice to kill or not to kill, resulting in the formation of a definite purpose to kill.

Whether a premeditated design to kill was formed must be determined by the jury from all the circumstances of the case.

Evidence examined, and found sufficient to sustain a verdict of murder in the first degree.

COUNSEL Nat R. Walker, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

PARKHILL J.

The plaintiff in error was indicted for, tried, and convicted of the crime of murder in the first degree in the circuit court for Wakulla county, and seeks relief here by writ of error from the sentence of death imposed upon him.

The first assignment of error is: 'The court erred in not excluding from the jury one J. Edgar Pigott, who was challenged for cause to wit, upon the ground that he, said juror, was a second cousin and the brother-in-law of the deceased.'

The record shows that one Edgar Pigott was a member of the jury that tried and convicted the defendant; but it does not appear anywhere, except in the motion for a new trial, that the defendant objected to or challenged the said juror upon the ground stated. Although the said objection to the juror is made a ground of the motion for a new trial, it is not sustained by affidavit or otherwise. A fact asserted in a motion for new trial is not self-substantiative before this court, but it must be authenticated otherwise in the transcript of record. Oliver v. State, 54 Fla. 93, 44 So. 712; Horne v. Carter, 20 Fla. 45. Therefore this assignment fails.

The fourth, fifth, and sixth assignments of error are based upon the refusal of the court to give the following instructions requested by the defendant:

'First. If you believe at the time when Noah Pelt left the defendant, and went over to Gwaltney's store immediately after the fight between the defendant and himself, and that the defendant Barnhill had reasonable ground to apprehend or conclude that by Noah Pelt going into said store, knowing that there was a Winchester rifle in said store, that Noah Pelt would do him some great personal injury, and that the defendant, Barnhill, believed that he was in imminent danger that such design would be done by Pelt's entering Gwaltney's store, you should find a verdict of not guilty.

'Second. If you find that the defendant, Miley Barnhill, sought an interview or left his store, believing that Noah Pelt had cursed his wife saying, 'Come out there, you damn bitch,' in order to ask the deceased what he meant by abusing his wife, and that he left his store with no hostile intention, but solely to have the deceased explain his language so used, and a wordy altercation ensued, and Noah Pelt, the deceased, became angry, and during which time the deceased assaulted Miley Barnhill, the defendant, with a deadly weapon, a pocketknife, in such a manner as to create in the defendant's mind a reasonable apprehension ofserious bodily injury, and that after an infliction on the defendant by the deadly weapon a pocketknife in the hands of the accused that he went into Gwaltney's store immediately afterwards, saying that he was going after a gun to kill the Miley Barnhill, the defendant, and Miley Barnhill acting under a reasonable apprehension of death or some bodily harm, you should find your verdict not guilty.

'Third. If you believe that Noah Pelt, the deceased, beat Miley Barnhill on the head with a pocketknife, and the defendant received wounds from the beating, and reasonably appeared to the defendant that the fight between Noah Pelt and the defendant was not over, and that though Noah Pelt had left him, going into Gwaltney's store, that he would soon return, and that he would receive additional bodily injury from the Noah Pelt, and Noah Pelt had the ability to inflict the injury, and that the danger was threatening and imminent, and under such circumstances, and so believing, the defendant shot and killed Noah Pelt, that he was justifiable upon the ground of his necessary self-defense, and you should find him not guilty.'

The court ruled correctly when he refused to give all these instructions. We will not attempt to point out all the defects in them. Their inaccuracies will more fully appear when we come to discuss the evidence and the law applicable thereto. Suffice it to say they do not limit the jury to the evidence in determining whether the facts enumerated in the instructions are true; but they instruct the jury to find a verdict of not guilty if they believe certain facts without requiring the jury to believe these facts from the evidence. Care should always be taken to instruct the jury that they must base their verdict upon the evidence adduced before them. Doggett v. Jordan, 2 Fla. 541. In the cited case the court said: 'There are few points upon which jurors are more apt to mistake than in supposing that they may find their verdict upon their own knowledge of the case acquired before they took their seats in the jury box.' Even if charges given require the jury to make their finding only on the evidence, that will not perfect the requested instructions.

The first of these instructions is erroneous in calling for a verdict of not guilty if 'the defendant Barnhill believed that he was in imminent danger that such design would be done by Pelt's entering Gwaltney's store.' The instruction should have been so framed as to inform the jury that the defendant could not 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.

The second of these instructions is erroneous in basing the innocence of the defendant upon his acting under a reasonable apprehension of death or some bodily harm. The danger must be imminent. Section 3203, Gen. St. 1906; Alvarez v. State, 41 Fla. 532, 27 So. 40; Sylvester v. State, 46 Fla. 166, 35 So. 142; Gladden v. State, 12 Fla. 562.

The third instruction is erroneous in several respects. If the defendant believed or had reason to believe that he would receive 'additional injury' from Pelt, and that the danger (of receiving 'additional injury') was threatening and imminent, he would not be justified in taking Pelt's life. As this instruction is framed, the defendant would be justified in killing Pelt, if the additional injury were only a blow with the open hand. The reasonable appearance of additional injury to the defendant from Pelt and the defendant's belief that...