Danford v. State

• Court: United States State Supreme Court of Florida
• Writing for the Court: HOCKER, J. (after stating the facts).
• Citation: 43 So. 593,53 Fla. 4
• Decision Date: 26 March 1907
• Parties: DANFORD v. STATE.

43 So. 593

53 Fla. 4

DANFORD
v.
STATE.

Florida Supreme Court, Division B.

March 26, 1907

Error to Circuit Court, Jackson County; Francis B. Carter, Judge.

I. J. Danford was convicted of murder, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where the court refuses to permit a proper question on cross-examination of a witness, but it appears from another part of the evidence that the question was substantially answered, so as to prove what was designed to be brought out by the question which was not allowed, no reversible error is shown.

It is the duty of a party to avoid a difficulty which he has reason to believe is imminent, if he may do so without exposing himself to the apparent risk of death or great bodily harm; and whatever qualifications this principle may in application have will depend upon the circumstances of each particular case. As, for instance, a man assaulted in his own house, or on his premises near his house, is not obliged to retreat, but may stand his ground and use such force as may appear to him as a cautious, prudent man to be necessary to save his life or to save himself from great bodily harm. Nor is a person whose life has been threatened obliged to quit his business to avoid a difficulty, but he cannot lie in wait for his adversary; and, in cases where a combat is mutually sought, the duty of retreating applies to both parties, for, both being in the wrong, neither can right himself without retreating.

A charge given by a trial judge should not hypothesize the existence of facts not proven, nor should inferences be drawn by the court from facts, unless those facts are shown by the evidence, and are such as must follow in law from the proven facts; but a charge is not objectionable which does not assume the existence of any fact, nor draw inferences from any proven fact, but leaves it to the jury to find the facts and to draw inferences from them.

The correctness of a portion of a charge is to be determined by a consideration of the whole charge. If a paragraph of a charge is bad law, injurious to the defendant, and conflicting with other portions of the charge, the error would be fatal.

Men do not hold their lives at the mercy of the unreasonable fears or cowardice of others. Instructions to the effect that, where a homicide is committed from excessive cowardice, the defendant cannot be convicted of murder in the first degree, or of a higher degree than manslaughter, are properly refused; and especially when the evidence does not show that the defendant was actuated by cowardice.

The trial judge commits no error in refusing to give instructions which undertake to define the phrases 'actual danger' and 'apparent actual danger,' as these expressions are not technical, and need no definition. Especially is this true when he gives instructions in behalf of the defendant which hypothesize the facts showing 'actual danger' and 'apparent actual, danger' from the defendant's standpoint, and instructs the jury to acquit the defendant if they find these facts to exist.

It is erroneous to permit the state attorney, over the objection of the defendant, to read to the jury from a paper not introuduced in evidence, but under circumstances suggesting that the paper contained the evidence of a witness for the defendant at the preliminary hearing, in order thereby to show that material testimony of the witness at the trial was in conflict with the testimony of said witness at the preliminary hearing, when the witness expressly denied making the statements contained in the paper, or did not admit making them, and it was not shown by any competent evidence what the testimony of the witness was at the preliminary trial; and such error is not cured by an instruction of the judge that the paper writing was not evidence, and could not be used as evidence, but that the state attorney was permitted to use it to refresh his memory as to the admissions made by the witness.

COUNSEL [43 So. 596]

[53 Fla. 11] Price & Watson, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State. [43 So. 594]

[53 Fla. 6] I. J. Danford was indicted and tried at the spring term of the circuit court of Jackson county, Fla., 1906, for the murder of Coley Clark on the 15th of March, 1906, by shooting him with a shotgun loaded with powder and balls. He was convicted of murder in the first degree, with a recommendation to mercy.

Coley Clark was a boy about 16 years old at the time he was killed. It appears from the testimony that Coley Clark was the son of one Joannah Wadkins, who had three children, viz., Coley, about 16 years old, Willie, about 14 1/2 years old, and Emily, a girl, whose age is not given. Joannah Wadkins and I. J. Danford lived something over 100 yards apart on the public road leading from Cambellton to Cottondale, running north and south. The killing occurred in the public road, about 250 yards north of Danford's house, about 4 o'clock in the afternoon of the 15th of March, 1906, which was on Thursday. Danford was standing on the inside of his field, about 30 steps from Coley Clark, when he shot and killed Coley, and also with the second barrel of his gun shot and wounded Willie, Clark. The boys were hailed by Danford and told to hold up, and almost immediately afterwards Danford fired on Coley killing him and then shot Willie. The place where the shooting occurred was about 400 yards north the Wadkins house and in view of it.

On Monday before the killing of Coley (on Thursday) a [53 Fla. 7] quarrel had taken place between Danford and Joannah Wadkins about a hog, or the division of the meat of hog, which Danford had killed. This occurred at the Wadkins house. It is evident there was a good deal of bad feeling on the part of the Wadkins family towards Danford about this hog. On the afternoon of the killing Coley started from his mother's house to go north on the public road leading by Danford's house, and the field where Danford was at work splitting rails. It seems Willie was with him, and, after going nearly to the front of Danford's house, ran back home and got a gun and two shells, and then overtook his brother. Willie was carrying the gun on his shoulder up to the time the boys were hailed by Danford. When the the shooting occurred Mrs. Wadkins was standing on the yard fence, where she could see up the road to the place where the shooting occurred. She says she ran out there to call her children, because she did not want them to go [43 So. 595] down the road. Mrs. Wadkins says her daughter Emily 'was sitting on the cowpen fence, so that, if any trouble came, she could see it.' Mrs. Wadkins also says she was on the fence, and that she knew Mr. Danford was at work in his field before the boys went down there. The defendant's testimony tends to show that Mrs. Wadkins and Coley had recently before the killing made threats against Danford, using a great deal of profane language, and that some of these threats had been communicated to Danford. Danford's testimony and that of his daughter Callie tends to show that Coley had endeavored to shoot him at the Wadkins house, the day before the killing. Mrs. Wadkins and her children denied making these threats, and denied that Coley had tried to shoot him. Callie Danford, a daughter of the accused, testified to the effect that she was at the woodpile (probably near her father's house) when whe first saw Coley Clark [53 Fla. 8] immediately before the killing. Coley came down where she was. 'He said: 'I see old Danford, the G----- d----- s----- of a b-----. I am going to kill him. I think he has made threats long enough.' Coley told Will to go back and get the gun; that he saw the G----- d----- s----- of a b-----. Will went back and got the gun. Their mother told them to kill him. Coley said to Will: 'Will, you take the gun, so Danford, the G----- D----- S----- OF A B-----, will not expect nothing?' he said: 'i want you to take the gun. Somebody might suspect me.' I ran through the house and out of the back door across the field to tell papa.' She ran through the field, got over the fence, passed the boys (Coley and Willie), ran to her father, and told him what Coley said. 'I said: 'Papa, they are coming to kill you, because they said they were.” Willie Clark denied that Coley used some of the language which Callie Danford said he used as to seeing Danford and telling him (Willie) to go back and get the gun. Mrs. Wadkins, her daughter Emily, and Willie Clark, besides the Danfords, all say that they saw Callie run out of the house, by the boys on the road, and go to her father. Danford had his double-barrel shotgun with him, setting near him in the corner of the fence. It was loaded with No. 3 shot and black powder. It was a muzzle-loading gun. Danford testified that he carried his gun out with him that evening, as he expected to go to a Mr. Mathis', there were some woods to go through, and he thought he would shoot some squirrels; also that he carried his gun with him when he went off. In this connection one of the witnesses testified that, when he asked Mr. Danford why he did not have a peace warrant against Coley, Mr. Danford said, in effect, that he trusted to his gun, rather than to the courts. He also testified that Mr. Barkett told him, the day before the killing of Coley, that the boys were making threats against him and were [53 Fla. 9] going to kill him, and also that his wife had told him of their threats at the dinner table on Thursday, the day of the killing, and a few hours before the killing.

Willie Clark testified that he and his brother Coley left home to go to a Mr. Tool's. There is some discrepancy between the testimony of Danford and his daughter Callie on the one side, and Willie Clark on the other, as to the immediate circumstances of the shooting. Willie Clark states in substance that he and his brother Coley were walking along the road; that he was behind Coley about a...