Conner v. State

• Citation: 106 So.2d 416
• Parties: Harley A. CONNER, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 12 November 1958
• Court: United States State Supreme Court of Florida

Page 416

106 So.2d 416

Harley A. CONNER, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida.

Nov. 12, 1958.

C. A. Avriett, Jasper, for appellant.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

O'CONNELL, Justice.

Defendant, Harley A. Conner, was indicted for the murder in the first degree of Mark Read, Sheriff of Gilchrist County, Florida. He plead not guilty and not guilty by reason of insanity. The jury returned a verdict finding him guilty of murder in the first degree with no recommendation of mercy. Defendant's motion for new trial was denied. He then entered his appeal from the judgment and sentence of the court.

Defendant lived alone in a county home which was within sight of the home of his son, Edward Conner. On the day of the homicide Edward Conner and his brother-in-law, Claude L. Rodgers, went hunting. When they returned to Edward Conner's home the defendant was there. Edward Conner and his father, the defendant, got into an argument over defendant's driving Edward's truck while the defendant was drinking. Defendant left and went to his house but returned shortly in the truck and with a shotgun. There were indications that defendant had been drinking. Rodgers, defendant's son-in-law, tried unsuccessfully to get the gun away from the defendant. Defendant then drove back home, after telling Rodgers that he could follow him in his car and get the gun upon arriving at defendant's house. However, when they got to defendant's house the defendant refused to give the gun to Rodgers and pointed it at him, telling him to leave him alone. Rodgers thereupon left, after warning the defendant that if he did not give him the gun he would get the Sheriff to come get it.

Rodgers and Edward Conner then drove into Trenton, the County seat, where they discussed the matter with the Sheriff, Mr. Mark Read, and asked him to come take the gun away from the defendant. Conner and Rodgers returned to Conner's home and they, with their wives and children, then went to the home of Leonard Conner, another son of the defendant. Leonard's home was also near the home of the defendant.

The defendant went to Leonard's house and Leonard informed him that the Sheriff was coming and asked his father to give the gun to the Sheriff when he arrived. The defendant returned to his home and subsequently the Sheriff came to Leonard's house and asked for more information relative to the incident. The Sheriff then left for the defendant's house.

While Edward Conner, Claude Rodgers and their families were all at Leonard Conner's house a shot was heard from the direction of the defendant's house. Leonard drove to defendant's house in his car. He discovered the Sheriff's car parked about 100 yards beyond his father's house and saw another car drive up and stop by the Sheriff's. The occupants of the car got out and Leonard came up also. They discovered the Sheriff sitting behind the wheel of his car bleeding badly and trying to call over his radio. The Sheriff told them the defendant had shot him. Leonard asked where his father was and the Sheriff replied he was up at his house but to leave him alone, as he might shoot Leonard also. Leonard thereupon returned home while the others drove the Sheriff into town for medical aid.

Defendant walked over to Leonard's house, carrying his shotgun. Leonard related that defendant first told him that he did not shoot the Sheriff, then that he did shoot him, and then on several occasions that he did not shoot him. Leonard said the defendant staggered and fell three times as he approached his house and that he assisted him into the house, where the arresting officers subsequently found him.

The Sheriff was transferred into an ambulance and rushed to a hospital in Gainesville. He told the ambulance driver that the defendant shot him. The physician attending him in the hospital also asked who had shot him and the Sheriff told him defendant had. A law enforcement officer was present and heard the Sheriff's remarks. The doctor asked the Sheriff if he had seen defendant shoot him and the Sheriff said he had not, but thought defendant fired the gun from a window or door of his home.

The Sheriff ramained conscious some 45 minutes after arriving at the hospital and died approximately three hours after being shot.

Defendant testified in his defense and related he had been drinking all day the day before the shooting and had drunk about a half pint prior to the argument with his son the morning of the shooting. He recalled in detail some of the events both prior and subsequent to the shooting but could recall nothing about the actual shooting. He asserted that he either did not shoot the Sheriff or that if he did he did not know it.

Defendant's principal contention is that the State failed to prove any specific intent on his part to kill the Sheriff. In addition he argues that the evidence shows him to have been in such a drunken state that he could not have entertained a premeditated design to kill anyone.

All witnesses who were asked testified that they did not see the defendant actually take a drink on the day of the shooting. His sons and son-in-law testified that they knew he had been drinking. Rodgers said he appeared to be in somewhat of a drunken stupor and Leonard Conner stated he saw him stagger and fall three times as he approached his house after the shooting. Investigating officers related that they smelled alcohol on his breath but did not deem him so intoxicated that, had they observed him on the city streets, they would have arrested him.

By defendant's own testimony he did not drink over a pint of whiskey on the day of the killing. He stated that he had drunk about one-half a pint from a full pint bottle prior to his argument with his son, which occurred near the noon hour, and did not remember drinking any more. The shooting occurred early in the afternoon. Although he contends he cannot recall the actual shooting, defendant did recall many of the details of the events of the day. In addition, the testimony of various witnesses as to defendant's actions, speech and demeanor indicate that defendant was not intoxicated to the extent that he was incapable of forming the intent to kill. The jury was adequately instructed by the court as to the relevancy of intoxication to premeditation. We conclude that the jury was warranted in determining from the evidence that the defendant was not so intoxicated at the time of the shooting that he could not have entertained a premeditated design to kill.

We note here that although the defendant plead not guilty by reason of insanity, he made no effort to prove this defense at the trial, nor does he argue the question on this appeal.

Further, as to defendant's contention that the State had failed to prove a specific intent on the part of the defendant to kill the deceased, the evidence shows that defendant was warned both by Rodgers, his son-in-law, and by Leonard, his son, that the Sheriff was coming to take the gun or guns from him. The confession, the sketch prepared by the officer and signed by defendant, the dying declarations of the Sheriff, all show that the defendant, in hiding, awaited the arrival of the Sheriff, and cut him down with a blast of buckshot. Eight...