Cook v. State

• Decision Date: 09 December 1903
• Citation: 35 So. 665,46 Fla. 20
• Parties: COOK v. STATE.
• Court: Florida Supreme Court

35 So. 665

46 Fla. 20

COOK v. STATE.

Florida Supreme Court, Division A.

December 9, 1903

Error to Circuit Court, Brevard County; Minor S. Jones, Judge.

M. C Cook was convicted of murder, and brings error.Reversed.

Syllabus by the Court

SYLLABUS

1.The defendant propounded the following question to a witness 'While you and Brooks and Cook were on the railroad track, what remark did Cook make in regard to protecting our citizens?'This was objected to by the state attorney and the objection sustained, but the court stated the witness could be asked what was said in the conversation; and defendant's attorney then asked the witness to state the whole conversation, which the witness proceeded to do.Even if the question was permissible, the court committed no reversible error.

2.When the defense is that the defendant was so much intoxicated as to be unable to premeditate the killing, and a conversation with him is brought out by his attorney from his own witness as to his condition while walking on a railroad track at night, a short time before the killing, and also a statement that he staggered, the witness may be asked on cross-examination what was the condition of the track whether any man was not likely to make a misstep, and whether persons other than the defendant stumble there sometimes.

3.Where a witness produced by a party to prove his good reputation testifies that he knows such reputation, and that it is good, he may be asked on cross-examination, for the purpose of testing his credibility, if he had not heard that the party had been guilty of specific acts of bad conduct pertinent to such general reputation; but the witness cannot be interrogated as to his knowledge of such specific acts nor can his testimony as to what he may have heard respecting specific acts be considered for any other purpose than as affecting his credibility.

4.Where a defendant in a prosecution for murder puts his reputation and general character in evidence, and does not limit the evidence to testimony as to his being a quiet and peaceable man, the state, on cross-examination, over the objection of defendant, asked the witness testifying to general good character if he had not heard that the defendant had, previously to the commission of the alleged crime for which he was then being tried, been guilty of specific acts of bad conduct, affecting his general character.This was not erroneous.The cross-examination of a witness may be as broad as his testimony in chief.

5.When a defendant in a prosecution for murder has put his general character or reputation in evidence, it is competent for the state, in rebuttal, to interrogate its own witness as to the general reputation of the defendant as a peaceable and law-abiding citizen, and as to whether that character is good or bad.Upon the witness answering that the defendant was peaceable and law-abiding except when he was drinking, and there being testimony that defendant was drinking when the homicide occurred, it is competent for the state to ask the witness whether the defendant's reputation when drinking was peaceable and law-abiding, but it is not competent to ask the witness about how often the defendant was drinking.

6.When a motion to strike the testimony of a witness is made, and a part of the testimony which is covered by the motion is competent, there is no error in overruling the motion.

7.In a trial for murder in the first degree, where there is any testimony which warrants it, the following instruction asked for by the defendant should be given, viz.: 'It is a general principle of law that intoxication is no excuse for crime, but this general principle has this important qualification or modification, so far as it relates to murder in the first degree: A particular or specific intent is absolutely essential in the commission of this crime, and if the mind of the person doing the killing is unable, because of intoxication, at the time of the killing, to form this particular or specific intent, there can be no murder in the first degree, unless the person doing the killing became voluntarily intoxicated for the purpose of killing while intoxicated.'

8.In a trial for murder, where the defense is that defendant was so much intoxicated as to be unable to form a premeditated design to kill, the following instruction, when requested should be given, viz.: There may, in contemplation of law, be an intention to kill a human being, which may not amount to a premeditated design to kill.Shooting a man intentionally and killing him is not necessarily the same as doing so with a premeditated design to kill.There may be an intention to kill without its having been premeditated.In order to convict the defendant of murder in the first degree, you must be satisfied from the evidence, beyond a reasonable doubt, that the defendant not only had an intention to kill the deceased, but that he actually had a premeditated design to kill him.'

9.In a trial for murder in the first degree, the following instruction embraces a correct proposition of law, viz.: 'The law presumes a sober man to intend what he does, but the law does not presume a killing with a premeditated design.This, like every other element of murder in the first degree, is to be inferred by the jury from the facts proved beyond a reasonable doubt.'

10.When the judge in his general charge has correctly given the law of reasonable doubt as recognized in this state, it is not error to refuse to give instructions defining such a doubt in other language and forms of statement of the law.

11.When the judge has given in his charge the correct definition of reasonable doubt, it is not error to refuse to instruct the jury: 'If there is from the evidence a possibility of the innocence of the defendant, he is entitled to an acquittal.'

12.It is not erroneous to refuse the following instruction: 'Before the jury can convict the defendant, the evidence must be so strong as to convince each juror of his guilt beyond a reasonable doubt; and if, after considering all the evidence, a single juror has a reasonable doubt as to the defendant's guilt, arising out of any part of the evidence, then the jury cannot convict him.'

13.A trial judge is not required to give an instruction defining murder in the third degree when there is no evidence in the case to which such an instruction would be applicable.

14.There is no error in refusing an instruction giving the law as contained in section 2924, Rev. St. 1892, when the judge, in his general charge, has given the substance of the section to the jury.

15.In view of the testimony in this case, an instruction that 'the jury should not convict from prejudice or upon insufficient evidence' should have been given.

16.Where a trial judge, in his charge, undertakes to give the statutory definition of murder in any degree or manslaughter, it is erroneous to substitute other words and phrases in the place of those used in the statute, or to interpolate other words, which substituted or interpolated words and phrases change the meaning of the statutory definition.

17.Where the trial judge, in his charge, omits to confine the venue to the county in which the crime is alleged in the indictment to have been committed, such omission would only be erroneous where there was a question as to the proof of venue.

18.In a trial for murder in the first degree, the trial judge used in the conclusion of a charge the following language, viz.: 'and that, when he fired the shot, he intended to kill Smith, or any particular human being, it would be murder in the first degree.'In the opinion of Chief Justice Taylor and Justices Shackleford and Hocker, this language is erroneous and misleading in a definition of murder in the first degree.Carter, P.J., and Justices Maxwell and Cockrell have a contrary opinion.So the question presented by this charge is not decided.

19.In a trial for murder in the first degree, the trial judge gave the following charge: 'No specific time is required to constitute premeditation.If the mind of the accused was in a condition to form a purpose, and there was a sufficient time for the forming of that purpose, and for the mind to be conscious of that purpose to kill, it is sufficient time of constitute premeditation; and if the jury believe from the evidence, beyond a reasonable doubt, that the defendant had fully formed a purpose to shoot and kill Smith, and that he was conscious of that purpose when he fired the shot, they will find the defendant guilty of murder in the first degree.'In the opinion of Chief Justice Taylor, and Justices Shackleford and Hocker, this charge, taken as a whole, does not afford a proper definition of premeditated design, and was erroneous.Contra, Carter, P.J., and Justices Maxwell and Cockrell.The court being equally divided in opinion, the question presented by this charge is not decided.

20.In a charge to the jury in a criminal case, no fact essential to constitute the crime should be assumed to be true unless that fact is clearly admitted by the defendant.

21.A charge to the jury in a criminal case in the following language is erroneous, viz.: 'If the jury in this case have a doubt in their minds arising from the evidence or lack of evidence as to all the material allegations of the indictment, they will give the defendant the benefit of such doubt, and find him guilty of such degree of crime as they believe from the evidence, beyond a reasonable doubt, him to be guilty of, and, if guilty of no crime, then acquit.'If the jury had a reasonable doubt arising from the evidence or lack of evidence as to all the material allegations of the indictment, they would not be authorized to convict the defendant of any degree of...