Berry v. State

• Decision Date: 27 February 1934
• Citation: 153 So. 507,114 Fla. 73
• Parties: BERRY v. STATE.
• Court: Florida Supreme Court

153 So. 507

114 Fla. 73

BERRY v. STATE.

Florida Supreme Court

February 27, 1934

Rehearing Denied March 28, 1934.

En Banc.

Error to Circuit Court, Jackson County; Amos Lewis, Judge.

Willie Berry was convicted of murder in the second degree, and he brings error.

Affirmed.

COUNSEL R. B. Moseley, of Jacksonville, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

PER CURIAM.

The first count of the indictment herein charges:

'That Willie Berry, on the 11th day of March, A. D. 1933, in the County and State aforesaid, unlawfully and feloniously and white perpetrating an act imminently 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, did inflict upon Jesse Owens a mortal wound by striking and beating him with a piece of brick, a more particular description of said weapon being to the Grand Jurors unknown, of which mortal wound the said Jesse Owens did languish and die on the 24th day of March, A. D. 1933.'

Trial was had on a plea of not guilty, and the following verdict was rendered:

'We the jury find the defendant guilty of murder in the second degree on the first count, so say we all.

'Bob Smith, Foreman.'

A motion for new trial was overruled, an exception thereto being noted, and the court imposed the following sentence, to wit:

'You Willie Berry, having been convicted by a jury of the offense of murder in the second degree, the Court adjudges you to be guilty, it is therefore the judgment of the Court and the sentence of the law that you, Willie Berry, for your said offense be confined in the State Prison of the State of Florida, at hard labor, for and during the period of your natural life.'

Section 1, chapter 8470, Acts of 1921, section 7137, Compiled General Laws, defines murder in the second degree and the penalty therefor as follows:

'The unlawful killing of a human being * * * when perpetrated by any act imminently 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, * * * shall be murder in the second degree, and shall be punished by imprisonment in the State prison for life, or for any number of years not less than twenty years.'

Several visitors, among them Willie Berry, were at the home of Jesse Owens when he was fatally wounded at night a short distance from the door of his dwelling house. Henry Bryant, a witness for the state, testified that, when he arrived, Jesse Owens was sitting in the house by the fire, Willie Berry was in the room, and that:

'I had been there about five minutes I guess and Will Berry called Jesse Owens out, and he got up and walked out and got to the gate--called him again--and they was arguing and cursing and he struck Owens alongside the head with his fist and knocked him down. He got up and backed off and he following him, and he backed off I guess fifteen or twenty feet and telling him not to come on to him no more. He picked up a brick or something, I took it to be a brick--Mr. Walker: Are you testifying he picked up a brick? A. Yes sir, I saw the brick, and hit him just above the left ear and knocked him down and unconscious. Then he calls for the camphor bottle--Q. Who calls for the camphor? A. Willie Berry, says, 'Bring me the camphor I believe I have killed him.' Q. What was done? A. We bathed his face and he came to and we toted him in the house and put him to bed. * * * Q. Did Jesse Owens fall to the ground at the time he was hit the first time? A. Yes, sir, fell to his knees. Q. What did he then do? A. When he raised he got up backing off. Q. Was he backing straight or staggering? A. Staggering back. Q. Did the defendant here follow him right on? A. Yes sir. Q. Where did the defendant pick up this brick from? A. About half way between those two gates. Q. Did you see him when he picked it up? A. Yes sir. * * * Q. Did you see any knife in the hand of Jesse Owens? A. No sir. Q. Did he have any weapon in his hand at all? A. No sir not as I saw. Q. Did you see any weapon in his hand when he went out of the room? A. No sir. * * * Q. Were you there when his hands were taken out of his pockets? A. Yes sir. Q. Did you search his pockets? A. No sir. Q. Did anyone search them in your presence? A. Julian Lanier got his knife out of his pocket. Q. Which pocket did he pull the knife out of? A. Out of his right pocket. Q. Was it open or closed? A. It was closed. Q. Did you later have occasion to look for that brick? A. No sir not until later, it was over a week before the brick was looked for. Q. Did you later have it? A. Caleb Owens come down there and asked me--Q. Don't state what he said. Did you go with Caleb Owens to look for it? A. Yes sir. Q. Where did you look for it? A. Right across the road in the briars where he threw it. Q. Did you find the brick? A. Yes sir we found a little better than a quarter of a brick. Q. Were there any other pieces there in the briars? A. No sir. Q. Did you take that brick out of the place where you saw the defendant throw it that night? A. Yes sir. * * * Q. When you got out on the porch how long were you there before the first lick? A. Just as I walked out and got to the edge of the porch. Q. Which direction was Jesse Owens facing at the time he was hit the first time? A. He was facing the north. Q. Did you see any weapon in his hand at the time that lick landed on him? A. No Sir. Q. Was he making any move or apparent attempt to go on to the defendant, or was the defendant coming on to him? A. The defendant was coming on to him, he wasn't making no attempt on him at all. Q. Did he ever make any attempt that you saw to go on to the defendant? A. No sir. * * * Q. About what time did the fight take place? A. Between ten and eleven o'clock. Q. Who worked on the wound? A. I kept the blood wiped off his face as long as I was down there, and then Willie got some old spider web out of the top and put on there to stop the blood.'

There was corroborating testimony for the State.

In the defendant's testimony he stated:

'I walked out to the door and gate and started off home, started up the road for home and I had got I suppose five steps when he come out of the gate and called, and I stopped and turned round and walked back toward him, and he come on up there where I was and says, 'If you will furnish the money I will get the liquor and we will pitch a party tomorrow night,' and I said, 'Jesse I haven't got any money,' It seemed like it made him mad and he run his hand in his pocket to get his knife and said, 'You are a God damn lying son of a bitch,' and got his knife and run at me and I shoved him back, I didn't want to hurt him, I thought he was drunk, and says, 'Put up your knife,' and when I shoved him it made him mad again, and I hit him that time hard enough to knock him down and he fell and I hit him again on the side of the head and I stood there and looked at him and turned him over and it looked like he was knocked out, and I run my hand under his arm and says 'Go get some camphor, he must be knocked out,' and I picked him up and told Julian Lanier to take the knife out of his pocket and Julian took the knife out his hand and shut it up and put it into his pocket. We carried him in the house and I got some water and bathed his face and washed off the blood and looked at the wound on the side of his head and I couldn't figure out how it hot there, but I went in and he was bleeding right on and I got some spider web and put there to stop the blood. Some of the boys went out with a flash light and looked at the ditch where he fell to see what he fell on and I didn't hear them say whether they found anything or not. I stayed around there for a while to see if he was going to get along all right and then I went home. * * * Q. Didn't you hit him with that piece of brick? A. No Sir. Q. Or a piece just like...