Coston v. State
Decision Date | 14 July 1939 |
Citation | 139 Fla. 250,190 So. 520 |
Parties | COSTON v. STATE. |
Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Orange County; Frank A. Smith, Judge.
George Coston was convicted of murder, and he brings error.
Reversed and new trial awarded.
H. B. S. Hammond and W. H. Poe, both of Orlando, for plaintiff in error.
George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for the State.
The record in this case shows that Robert Etty, around the hour of midnight on February 15, 1938, pursuant to a previous agreement, went to room number 208 of one of the leading hotels of the City of Orlando, then occupied by Dolores Myerly or Marie Bayouth. He had with him a miniature bottle of whiskey obtained some few minutes prior thereto from one Donald Long. Robert Etty was promptly admitted to the room and Dolores Myerly soon learned of the miniature bottle of whiskey and requested a drink. The bottle was delivered to her, when she removed the top and poured some of the contents of the bottle into a glass and drank a portion, and then exclaimed, 'What in the world did you put in that stuff?' She turned and walked back toward the rear door of the room and fell at the foot of the bed unconscious.
Etty tried to revive her by the use of wet towels, and, having failed so to do, called a physician who arrived or reached the room within about ten minutes, and some ten or fifteen minutes thereafter the young woman died. The contents of the glass and bottle were delivered to a chemist. The stomach of the deceased was removed and the contents thereof likewise delivered to the same chemist. An analysis was made and the stomach found to have or contain a great quantity, or about 14 grains of potassium cyanide; the contents of the glass and bottle about 8 grains, and the estimated number of grains of potassium cyanide in the miniature bottle of whiskey was placed about 25 grains. The testimony shows that five grains will produce death.
When Robert Etty was taken into custody, shortly afterwards, he identified Donald Long as the person from whom he obtained the poisoned whiskey, and when Donald Long was arrested he identified George Coston as the person giving him the poisoned whiskey on the afternoon of February 14, 1938. Dr E. N. Sykes testified he delivered to Coston one-fourth of a pound of potassium cyanide. It was not shown that Donald Long or George Coston knew or were acquainted with the deceased Dolores Myerly. George Coston was the owner of and had operated for sometime in the City of Orlando a private detective agency, and had given employment to Donald Long since the Fall of 1937 until February, 1938.
The grand jury of Orange County, Florida, indicted George Coston, Donald Long and Dr. E. N. Sikes for the unlawful death of Dolores Myerly in twelve separate counts. They were arraigned and each entered a plea of not guilty. A severance was granted as to George Coston and he was placed on trial, convicted and sentenced to be electrocuted. The case was submitted to the jury under counts 1, 2, 3, 4, 9, and 10 of the indictment. Counts 1, 2, 9 and 10 were drafted under Section 7645, C.G.L., and counts 3 and 4 under Section 7137, C.G.L. Count 1 alleged that George Coston unlawfully and feloniously adulterated whiskey with potassium cyanide and gave it to Donald Long and Donald Long gave it to Robert Etty, and that Robert Etty, in turn, gave it to Dolores Myerly, who drank a portion thereof and was thereby poisoned and the effect of which was to produce her said death. The 2nd count is substantially the same as the 1st count, with the additional allegation that George Coston did the acts described in Count 1 with malice aforethought; and Counts 3 and 4 are the same as Counts 1 and 2, with the further allegation that the acts and deeds were committed with a premeditated design to kill Donald Long as set out in Count 3, and with the premeditated design to kill Dolores Myerly as set out in Count 4. Count 9 alleges that George Coston and Donald Long unlawfully and feloniously adulterated liquor with potassium cyanide; and Count 10 alleges that George Coston and Donald Long unlawfully and feloniously and of their malice aforethought adulterated whiskey with potassium cyanide and that Long delivered or gave the said adulterated whiskey to Robert Etty, who gave it to Dolores Myerly and that her death was caused by poison from the drinking of a portion thereof. Dr. E. N. Sikes is charged as an accessory before the fact in each count of the indictment.
It is contended that the record fails to show that plaintiff in error intended to kill Dolores Myerly. There is evidence, however, to the effect that plaintiff in error delivered the miniature bottle of adulterated or poisoned whiskey, and, while it was not shown that it was intended for the deceased, regardless of intentions, this conduct was prohibited by law. The law, as well as reason, prevents plaintiff in error from taking advantage of his own wrong doing, or excusing himself when this unlawful act, if committed by plaintiff in error, strikes down an unintended victim. The original malice as a matter of law is transferred from the one against whom it was entertained to the person who actually suffered the consequences of the unlawful act. See Pinder v. State, 27 Fla. 370, 8 So. 837, 26 Am.St.Rep. 75; State ex rel. Lanz v. Dowling, 92 Fla. 848, 110 So. 522. The rule, supra, is well expressed in Wharton's Criminal Law, Vol. 1, 12th Ed., pages 207 and 211, pars. 153 and 157, viz.:
The record shows that during the progress of the trial in the lower court the State offered as a witness Buck Moseley, who testified at the time of the trial in May, 1938, that he had personally known the defendant, George Coston, for about three or four months; was 18 years of age; was a cousin of Donald Long; lived with his father on Route 3, Vineland Road Jacksonville, and admitted that he had been convicted of crime. The witness further testified, over the...
To continue reading
Request your trial-
D.J.S., In Interest of
...will be held accountable for even though this criminal act causes injury to one other than the intended victim. See Coston v. State, 139 Fla. 250, 190 So. 520 (1939), cited in Valassakis v. State, 187 So.2d 74, 77 (Fla. 1st DCA 1966), for the doctrine quoted at page 16, note 15, of the en b......
-
State v. Brady
...at 639-44. 3. See Provenzano v. State, 497 So.2d 1177, 1180 (Fla.1986); Lee v. State, 141 So.2d 257, 259 (Fla.1962); Coston v. State, 139 Fla. 250, 190 So. 520 (1939); Hall v. State, 70 Fla. 48, 69 So. 692 (1915). As we recognized in Provenzano, "[t]he usual case involving the doctrine of t......
-
Provenzano v. State
...Thus, the original malice can be transferred to the person who suffered the consequence of his act, Arnold Wilkerson. Coston v. State, 139 Fla. 250, 190 So. 520 (1939), and the instant case both involve the less common but equally valid factual scenario which warrants the application of the......
-
West v. State
...independent of that for which he was on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. See Coston v. State, Fla., 190 So. 520; v. State, Fla., 188 So. 346; Hartman v. State, 121 Fla. 627, 164 So. 354; Gunnels v. State, 96 Fla. 659, 118 So. 919; Boyett v. ......