Bassett v. State

• Decision Date: 11 March 1902
• Citation: 44 Fla. 12,33 So. 262
• Parties: BASSETT et al. v. STATE.
• Court: Florida Supreme Court

33 So. 262

44 Fla. 12

BASSETT et al. v. STATE.

Florida Supreme Court

March 11, 1902

Error to circuit court, Jackson county; Evelyn C. Maxwell, Judge.

Jackson Bassett and another were convicted of murder, and bring error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where the record shows that defendants were required on a day of the term of the court to plead to an indictment regularly returned by the grand jury against them, and it is recited that on that day they were at the bar in custody, and, having been formally arraigned, and pleaded not guilty to the charge, and thereupon came a jury, etc., it sufficiently appears that defendants pleaded not guilty to the charge preferred against them by the indictment.

2. Where there is sufficient in the record to show the presence of the accused in court during the proceedings, the omission of a formal arraignment is waived by pleading to the indictment.

3. After a witness for the state had testified to facts showing a foundation for the introduction of dying declarations of a party killed, he was asked to state what the deceased said to him, to which question an objection was made on the ground that it might be relevant and it might not, and it was requested that the witness be confined in his testimony to the time of the killing. The court ruled that the witness could state what was said by the deceased as to the homicide and what directly led up to it, and thereupon the witness narrated a conversation with the deceased, which related in part to some matters transpiring before the killing. Defendant moved to strike out all the testimony of the witness as to dying declarations not immediately connected with res gestae of the transaction causing death, which was not granted. Before the argument of the case the court of its own motion struck out all of the testimony of the witness as to the dying declarations of the deceased, except such parts as related directly to the difficulty in which the deceased received his fatal wound, and instructed the jury not to consider, in making up their verdict, the testimony stricken out. Held, no reversible error in the action of the court.

4. A request to charge may properly be refused when it has already been fully covered by the charges given.

5. The principle that the aggressor in a personal difficulty, one not reasonably free from fault, can never be heard to acquit himself of liability for its consequences on the ground of self-defense, must, under the statutes in this state relating to homicides, be applied with reference to the facts of the particular case, and is applicable only to personal difficulties; that is, the acts of aggression or wrongdoing to preclude a party from relying upon the right of self-defense must relate to the assault in resistance of which the assailant was killed.

6. Under a state of facts tending to show that the accused first assaulted the deceased with a deadly weapon, in the resistance of which he was killed, it would be error to instruct the jury that, if the accused brought on the difficulty with the deceased, or was the aggressor therein he would still be entitled to the benefit of the right of self-defense, provided they believed that in bringing on the difficulty he had no design to felongiously maim, wound, or kill the deceased. Such an instruction would ignore the character of the aggression, and assert a right of perfect self-defense under conditions that might not authorize it, as one cannot rely upon the plea of self-defense when he knowingly and willfully brings upon himself the very necessity which he seeks to set up as a justification for his act. He may not necessarily be guilty of murder in the first degree, or murder in any degree; still, if he brought on the difficulty, and was the aggressor in a personal conflict that resulted in death, he should not escape all punishment.

7. Testimony in this case held sufficient to sustain a verdict of murder in the second degree.

COUNSEL M. D. Price, for plaintiffs in error.

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

OPINION

MABRY J.

Plaintiffs in error were jointly indicted for murder in the first degree, and were convicted of murder in the second degree. From the judgment of the court sentencing the accused to the penitentiary they sued out writ of error.

The first error assigned is that the record fails to show the accused were present during the entire trial, or that they were arraigned upon the indictment against them, or pleaded thereto. The record shows that on the 28th day of May, 1901 a day of the spring term of the court that year, an indictment for murder in the first degree was properly returned by the grand jury against plaintiffs in error; and it is recited that on the 5th day of June, 1901, a day in said term, the defendants were required to plead to said indictment, and thereupon an order was made as follows:

'Now at this day came the state, by its attorney, and the defendants herein, each being at the bar in custody, and each having been formally arraigned and pleaded not guilty to the charge herein, thereupon came a jury of twelve good and lawful men, to wit,' etc. It appears from the record that the trial extended to the third day from the beginning, and upon the assembling of the court after each daily adjournment it is recited that: 'Now at this day came the state, by its attorney, and the defendants herein, each being at the bar in custody, and each having been on a former day formally arraigned and pleaded not guilty to the charge herein, thereupon came the same jury,' etc. It is contended that it is not shown by the record that defendants were present at the arraignment, or that they pleaded to the indictment. Defendants were required to plead to the indictment on the 5th day of June, a day in the spring term of the court, and on that day they were at the bar in custody, and, having been formally arraigned, and pleaded not guilty to the charge therein, thereupon--that is, on that day--came a jury named, and heard a part of the evidence. The record sufficiently shows, we think, that the defendants pleaded not guilty to the charge preferred against them by the indictment, and that the trial was had upon such plea. It was held in Dixon v. State, 13 Fla. 631, that, where there was sufficient in the record to show the presence of the prisoner in court during the proceedings, the omission of a formal arraignment is waived by pleading to the indictment. See, also, Reed v. State, 16 Fla. 564. The record entry before us was evidently designed to show that on the 5th day of June the prisoners were brought to the bar, and having then been formally arraigned and pleaded not guilty, the jury was organized, and the trial proceeded. If it sufficiently shows that there was a plea of not guilty to the indictment, this will do, and we are of opinion that this is sufficiently shown.

The second and third assignments of error may be considered together. They are: First, that the court erred in permitting the witness Medlock, in testifying to dying declarations of the deceased, to state matters not part of the res gestae of the homicide; and, second, that the court erred in refusing to grant the motion of defendants to strike out all the testimony of said witness as to dying declarations not immediately connected with the res gestae of the transactions causing the death of the deceased. The witness Medlock was introduced by the state to prove a dying declaration of the party killed, and, after laysuch declaration of the party killed, and, after laying such evidence, he was asked to state what the deceased said to him. This was objected to on the ground that it might be relevant and it might not, and it was asked that the testimony be confined to the time of the killing, as anything prior thereto would be merely a recital, and not a dying declaration. The court ruled that the witness might state what was said by the deceased as to the homicide, and what directly led up to it; to which ruling the defendants excepted. The witness then narrated a conversation he had with the deceased not long before his death, and this conversation related in part to some matters transpiring before the killing, and which counsel for defendants contends form no part of the transaction in which deceased lost his life, and which may properly be proven as a dying declaration. The bill of exceptions shows that before the final arguments for the state and the accused the court, of its own motion, struck out all of the testimony of the witness Medlock as to the dying declarations of the deceased, except such parts of the statement as related directly to the difficulty in which the deceased received his fatal wound, and instructed the jury not to consider, in making up their verdict, the testimony of the witness Medlock stricken out. The ruling of the court in finally excluding this testimony of the witness Medlock was as comprehensive and embraced all that the accused objected to and asked to be excluded. The objection to the testimony was in a general way, without specifying any particular part further than to confine it to matters immediately connected with the res gestae of the homicide or transaction causing the death; but, without considering the character of the objection, we think there could have been no injury to the accused in view of the rulling and express caution of the judge that the jury should not consider any part of the declaration except such as related directly to the difficulty in which the deceased received his fatal wound.

The fourth assignment of error is that the court erred in refusing to give the first special request to charge, as follows, viz.: 'The innocence of the defendants, and each of them, must be presumed by...