Brown v. State
| Decision Date | 16 March 1893 |
| Citation | 31 Fla. 207,12 So. 640 |
| Parties | BROWN v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Walton county; W. D. Barnes, Judge.
Indictment against Allen Brown for murder in the first degree. Defendant was convicted of manslaughter in the second degree, and brings error. Affirmed.
Syllabus by the Court
1. A charge that if the deceased was lawfully in possession of the house and premises when he was killed, and on which he was living at the time of the killing, he was as exempt from hostile intrusion or from forcible or unlawful ejectment as if the place was his by fee-simple title, and he has as good right to defend it from such intruder, even if that intruder claimed ownership of the property, as if the title was in him without dispute, does not assume that, if the deceased was lawfully in possession of the house and premises, the defendant was a hostile intruder, with intent to forcibly and unlawfully eject the deceased. On the contrary, its propositions as to lawful possession and hostile and forcible intrusion and unlawful ejectment are hypothetical.
2. A charge is not irrelevant when there is testimony to which it is applicable.
3. Charging as to manslaughter in the second degree is immaterial to the defendant where there is a verdict of such manslaughter, and the testimony of the state clearly proves a higher degree of guilt, murder in the first degree, and it is apparent that the jury did not believe the testimony for the defense, which testimony, had the jury believed it, would have influenced a verdict of acquittal on the ground of self-defense. Any error in the inapplicability of the charge to the case made by the testimony is harmless error.
4. On an indictment for murder there may be a conviction of manslaughter in the second degree.
5. The fact that the evidence would have sustained a verdict of murder in the first degree does not render it insufficient to support a verdict of manslaughter in the second degree.
6. Offenses committed prior to the Revised Statutes becoming operative are still offenses under the statutes which punished them at the time of their commission. Such is the express purpose of section 2353 of the Revision. Whether section 32 of article 3 of the constitution inhibits a mitigation of punishment of any such prior offenses in the cases contemplated by the stated section of the Revision is not involved in this case, as the punishment inflicted is within both the old and the new law punishing manslaughter.
COUNSEL C. J. Perrinot and Daniel Campbell, for plaintiff in error.
W. B. Lamar, Atty. Gen., for the State.
The indictment charges the plaintiff in error with murder in the first degree in killing Marvin Knowles on July 12, 1891, in Walton county. The trial was in July, 1892, and resulted in a verdict of manslaughter in the second degree, and sentence to imprisonment in the state prison for seven years.
I. The first error alleged is as to the following instruction given to the jury: 'If the deceased was lawfully in possession of the house and premises when he was killed, and on which he was living at the time of the killing, he was as exempt from hostile intrusion or from forcible and unlawful ejectment as if the place was his by fee-simple title; and he has as good right to defend it from such intruder, even if that intruder claimed ownership of the property, as if the title was in him without dispute.' An objection urged against this charge is that it virtually assumes that, if the deceased was lawfully in possession of the house and premises where he was living when he was killed, the defendant was a hostile intruder, with intent to forcibly and unlawfully eject the deceased from such house and possession. In our judgment, no such assumption is to be found in the charge; on the contrary, its propositions as to lawful possession and hostile and forcible intrusion and unlawful ejectment are hypothetical. Another objection to this instruction is that it is entirely unsupported by the evidence, and is upon facts which the testimony does not tend to prove; or as the proposition is ordinarily stated, the charge is entirely irrelevant. Looking to the testimony of the wife of the deceased, who alone was present when the altercation took place, the griveance under which the defendant, according to his own expression at the time of his going to the house took place, the grievance under which cursed the females of defendant's family, still it cannot be denied that there is testimony to the effect that the retention of the house which it seems the defendant had sold to the deceased, but had not been paid for, was a subject of very hostile feelings in the defendant towards the deceased, and of bad blood between them. George Jordan testified that defendant had said to him several weeks before the shooting that he was going to kill Knowles, and tear his house down. Allen Hodge says that about a month previous to the homicide the defendant was talking about a house the deceased had got from him, and said if deceased did not get out of it he would kill him. In view of the presence of such testimony, and of the reply of the deceased that he had not done the alleged cursing, and the further statement of his wife to the same effect, the jury were entitled to sit in judgment upon the sincerity of the ostensible reason or excuse given by the defendant for his visit to the deceased's premises, which visit was, according to the state's testimony, clearly hostile. It was for them to decide whether he, notwithstanding his complaint as to the alleged cursing, did not go there to kill him, and thus further his purpose of regaining possession. The charge was neither irrelevant nor misleading.
II. The judge also charged the jury as follows:
The exception is confined to those words of the second sentence which are italicized, and the grounds of the objection are: First, that they are inapplicable to the evidence; and, second, it is contradictory and ambiguous, and therefore calculated to mislead and confuse the jury, and prejudice the accused; and, third, they are contrary to the then existing statute of manslaughter in the second degree.
There is certainly testimony tending to show that the defendant was unnecessarily on deceased's premises. He did not even have to go on them in passing to and from between his own house and that of his wife's mother by the ordinary route, and it is testified that he left the ordinary path to go up to the house of deceased. The knowledge he is shown to have had of the hostile feelings and alleged fatal purposes of the deceased towards him gave him reason to believe that his presence would bring on a difficulty, and especially so when the testimony of his own deadly purposes towards the deceased is considered.
Counsel have not pointed out wherein the words excepted to are contradictory and ambiguous, or either, and we fail to perceive it; and, this being so, we are brought to the last of the three objections to the charge, and in this connection counsel refer to two sections of the crimes statute as it stood at the time of the homicide. They are sections 9 and 10, p. 351, McClell. Dig., and are as follows '(9) The killing of a human being without design to effect death, in a heat of passion, but in a cruel and unusual manner, unless it be committed under...
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... ... upon that phase of the law of self-defense ... Evidence ... held sufficient to sustain conviction of murder in second ... degree. Evidence examined and found sufficient to sustain the ... COUNSEL ... [102 So. 642] ... [88 ... Fla. 446] Brown & Stokes, of Miami, and McCune, Weidling & ... Hiaasen, of Ft. Lauderdale, for plaintiff in error ... Rivers ... Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for ... the State ... OPINION ... ELLIS, ... The ... plaintiff in error, Tom Ammons, ... ...
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