Britt v. State

• Court: Florida Supreme Court
• Citation: Britt v. State, 102 So. 761, 88 Fla. 482 (Fla. 1924)
• Decision Date: 18 December 1924
• Parties: BRITT v. STATE.

102 So. 761

88 Fla. 482

BRITT v. STATE.

Florida Supreme Court, Division A.

December 18, 1924

Error to Circuit Court, Sarasota County; W. T. Harrison, Judge.

B Britt was convicted of murder in the first degree, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Verdict of guilty conclusive. In the trial of an indictment for murder a verdict of guilty will not be disturbed, if it might have been found by reasonable men from the evidence adduced and the evidence does not preponderate against it, and it does not appear that the jury were influenced by considerations outside the evidence.

Evidence to show malice and motive admissible. Evidence tending to show malice on the defendant's part in a prosecution for murder and a motive for the killing is admissible.

Motion in arrest of judgment that file mark shows it was filed before being presented, is without merit. A motion in arrest of judgment upon the ground that the file mark upon the indictment shows it to have been filed before presented, but the minutes of the court show it to have been filed after presentation by the grand jury, is without merit.

Motion not evidence of facts averred therein. A motion is not evidence of the facts averred in it. The motion is not self-supporting.

Exceptions to refusal to charge must be taken at time; exceptions should be taken to each requested charge refused, and separately assigned as error. Exceptions to the court's refusal to charge as requested must be taken at the time of such refusal; and when several charges are requested and refused exception should be taken to each requested charge as it is refused, and separately assigned as error.

Exception taken en masse to refusal to give instructions not cured by separating exceptions in motion for new trial. Where an exception is taken en masse to the court's refusal to give several requested instructions, the error cannot be cured by separating the exceptions into as many units as there were instructions refused in a motion for a new trial.

One exception to refusal of several instructions fails if one correctly refused. Where one exception is taken to the court's refusal to give several requested instructions such exception will fail if one of the instructions requested was correctly refused.

One complaining of error must make it appear. All presumptions exist in an appellate court that the judgment of the lower court is correct, and one who complains of error must make the same to appear.

Charges should be applicable. Charges of the court to the jury should be applicable to the issues and to the evidence.

Instruction jury are sole judges of sufficiency of evidence, not harmful error. A charge in which the jury are instructed that they are the sole judges of the sufficiency of the evidence does not constitute harmful error.

Verdict of murder in first degree sustained. Evidence examined and found sufficient to support the verdict.

COUNSEL

H. S. Glazier, of Tampa, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

ELLIS J. B.

Britt was indicted for the murder of Ed Andrew on June 21, 1923. There was a verdict of murder in the first degree, with recommendation to mercy.

The defendant and his wife were living in a tent on Treasure Island, near Midnight Pass, in Sarasota county. On the morning of the 21st of June, H. A. Davidson, who lived on the island, in company with Ben Robinson went to the beach, a place where they usually caught bait for fishing. When they arrived at a point opposite the Britts' tent and started across 'the cut' toward Davidson's boat they observed Britt and his wife leaving their tent. Mrs. Britt was carrying a rifle; Britt had a minnow net. Ed Andrew, the deceased, was near his own boat walking along the beach.

According to the evidence for the state, as Davidson and Robinson approached the Britts, Mr. Britt threw down his minnow net and taking the rifle from his wife applied a very insulting epithet to Andrew and shot him. Andrew, who, in the meantime, had gone back to his boat, replied by firing a shot from his shotgun which struck Mrs. Britt, inflicting painful wounds. She screamed and fell to the ground. Britt, stepping over her body, advanced to the boat behind which Andrew had taken shelter, and approaching within 5 or 6 feet of him shot him through the head. The shot entered the back of the head behind the right ear, There were also two wounds in the body of Andrew caused by a bullet that entered the 'right side and passed out of the left side.' Andrew's death resulted from the wound in the head and body.

The defendant's account of the shooting and that given by his wife differ in that the defendant said Andrew shot first, wounding Mrs. Britt, and the defendant, taking the gun from his wife, shot Andrew. In doing that he said he 'stepped across her body and grabbed the gun.' He noticed that Andrew was on his knees behind his boat. He was unbreaching his gun, which was a double-barreled shotgun. Defendant said: 'I stepped over my wife's body, and I walked up that way about two steps' and 'made two quick shots.'

Mrs. Britt was not killed, but she was wounded with small shot, and so was the defendant.

Mrs. Britt testified that when they met Davidson and Robinson the defendant 'had the rifle in his hand. He was standing right close to them all the time. And he took hold of the gun but he never pointed it at them.' On cross-examination, she said she had the rifle until they met Davidson and Robinson, and then she gave it to her husband.

The jury accepted the testimony of the witnesses for the state and found the defendant guilty of murder in the first degree.

The evidence was sufficient to sustain the verdict, and we cannot reverse the judgment upon the ground that it was insufficient. While there is some conflict between the testimony of witnesses for the state and evidence offered in behalf of the defendant, it was the jury's province to reconcile it if possible, and if not to reject that which they considered unworthy of belief. It does not appear that the jury was influenced by considerations outside the evidence. The evidence does not preponderate against the verdict. It was such a verdict as might have been found by reasonable men. Every presumption is in favor of the correctness of the verdict rendered. See Smith v. State, 72 Fla. 449, 73 So. 354; Williams v. State, 58 Fla. 138, 50 So. 749; John v. State, 16 Fla. 554; Robinson v. State, 24 Fla. 358, 5 So. 6; Williams v. State, 68 Fla. 88, 66 So. 424; Thomas v. State, 73 Fla. 115, 74 So. 1; Houston v. State, 50 Fla. 90, 39 So. 468; Wallace v. State, 76 Fla. 175, 79 So. 634; Childers v. State, 74 Fla. 288, 77 So. 99; Pelham v. State, 70 Fla. 295, 70 So. 87; Phillips v. State, 28 Fla. 77, 9 So. 826.

This disposes of the first, second, and third assignments of error.

The fourth assignment of error groups the 'various rulings' of the court excluding testimony for the defendant and admitting evidence against him. Under this assignment only one ruling of the court is discussed. It related to a question propounded by the state attorney to the first witness for the state, whose name was Davidson. He was asked if the defendant had requested 'any of the persons there on the beach that morning to leave or made any threat to drive them away from that part of the beach?' The question was objected to by defendant's counsel and overruled. The witness was permitted to answer it. He said that the defendant called the witness and Robinson by the same name, referring to the opprobrious epithet which he applied to the deceased, and that was just before the shooting. That the defendant said to Davidson and Robinson 'will you keep away from me' and witness said 'yes; and turned around and walked' to his boat.

Counsel for defendant contend that the words of the defendant were not part of the res gestae, and were, therefore, inadmissible.

There is no merit in the contention. The testimony tended to show a motive on defendant's part for the killing of Andrew. It tended to show that he regarded these men, Andrew, Davidson, and Robinson as trespassers upon his fishing grounds, and an intention to use force and violence, if necessary, to compel them to leave. It was a circumstance supporting the implication of express malice. It was not shown that the accused was irritated by any recent and great provocation calculated to arouse sudden and violent anger. She Holland v. State, 12 Fla. 117; Daniels v. State, 57 Fla. 1, 48 So. 747; Copeland v. State, 58 Fla. 26, 50 So. 621.

The denial of the motion in arrest of judgment was also without merit. The basis of the motion was that the indictment showed by an indorsement on the back that it was filed on November 19th, while the minutes show that the court convened on the 20th of that month. The minutes of the court show that the grand jury presented the indictment on November 21st. The figures '19th' have a pen line drawn through them, followed by the figures '21st' under the words: 'Presented in open court by the grand jury and filed.' So the date of presenting and filing the indictment appears as follows: 'Nov. 21st, 1923.'

An assignment of error, which is No. 5, attacks a ruling of the court holding that there was no illegal separation of the jury trying the cause. The tenth, eleventh, twelfth, and thirteenth, grounds of the motion contain some statements to the effect that no special bailiff was in attendance up on the jury; that the foreman took them out to dinner as his guests; that the jury was not kept together...