Darty v. State
| Decision Date | 04 March 1964 |
| Docket Number | No. 3257,3257 |
| Citation | 161 So.2d 864 |
| Parties | D. C. DARTY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
J. Hardin Peterson, Lakeland, and William C. Pierce, Tampa, for appellant.
James W. Kynes, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., Tallahassee, for appellee.
Robert E. Stokes was killed in Polk County, Florida on the afternoon of January 15, 1962 by shots fired from a pistol by D. C. Darty who was indicted and brought to trial. The question was whether the homicide was felonious as charged by the state or self-defensive and justifiable as contended by the defendant. The defendant was found and adjudged guilty of second degree murder on the first degree indictment, and he now submits on appeal that certain incidents of his trial constituted reversible error. These are covered by 31 assignments of error and presented under 11 points on appeal hereafter discussed.
The trial on the whole was well conducted, and both the state and the defendant were ably represented. There were the usual partisan disputes as to certain rulings of the trial court, and a considerable number of points were preserved by objection. There were in fact a few questionable aspects of the trial, but we find that none of them were legally prejudicial to the defendant. There appears no basis for holding that the defendant was denied an essentially fair trial or that the evidence was insufficient to support the verdict.
Most of the factual background was not controversially involved. Defendant D. C. Darty was a 75 year old former peace officer who had served as Chief of Police of the City of Lake Wales for 18 years. In recent years he had a sciatic condition which affected his back and right leg. In 1957 he married Mrs. Catur Clark, a widow whose daughter Pauline was the wife of Robert E. Stokes. Thus the defendant was the step father-in-law of Robert Stokes who was 52 years old at the time of his violent demise. Following the defendant's marriage the relations between the two men were strained. The younger man was openly resentful of the defendant's marriage, and on several occasions he expressed the opinion that the defendant had married Mrs. Clark for her money.
After the defendant's marriage to Mrs. Clark and prior to the day of the shooting, Robert Stokes was reported to have made several threatening statements with reference to the defendant. There is nothing in the record indicating that during this five year interim Robert Stokes made or attempted any physical attack on the defendant. In June, 1957, shortly after his marriage, the defendant was specially deputized and permitted to carry a firearm in view of his report that Robert Stokes had threatened him; and later the defendant moved to another residence in the area ostensibly to avoid living in close proximity to Stokes.
On January 15, 1962 at approximately 3:30 o'clock in the afternoon, Robert Stokes and one Larry Bowen were burning brush on the Clark grove. In the vicinity was Permon Nance, a Negro who was supervising a crew of fruit pickers. W. L. Black was also on the grove in his automobile supervising a crew of men spreading fertilizer. Robert Stokes, according to Permon Nance, walked away from the brush fire carrying his rake and saying to Nance, 'Man, I'm going up to get me a drink now, I'm a little on the thirsty side', and walked past Nance; that at this juncture the pick-up truck of D. C. Darty approached and stopped close to Stokes, and witness Nance saw Stokes standing by the Darty truck talking with the defendant and leaning on the rake, but Nance did not hear the conversation.
W. L. Black testified that he saw Stokes standing by the truck talking with Darty who remained in the truck; that he, Black, then drove up, parked behind Darty's truck and spoke to Darty. Black testified:
A 'And I don't remember just exactly what was said but it was talking about picking of the fruit and putting out fertilizer. And Mr. Darty said, 'They supposed to have that fruit off in December and here it is the 15th of January and haven't got it off yet.' And Mr. Stokes he said that '* * * it throwed us about three or four weeks behind with our fertilizer.'
Q 'I see.
A
W. B. Black further testified that as Stokes walked away Darty started his truck and headed toward the barn.
Defendant Darty testified in this connection that as he was heading toward the barn Stokes flagged him down; that he, Darty, had been squirrel hunting that forenoon and that he always kept his shotgun in the truck during hunting season; that he was afraid of Stokes and was licensed to carry a pistol because Stokes had threatened him; and he stated that the pistol was next to him on the seat of the truck, together with the shotgun, when Stokes flagged him down. On direct examination the defendant testified:
Q '* * * Who spoke first; what was said?
A 'He did.
Q 'And what did he say?
A 'He said, 'are you going to let these people finish this--picking this fruit and their contract out?'
Q 'Then what did you say?
A 'I said,
Q 'And then what did he say?
A 'He said,
Q 'And then what did you say?
A 'Well, I started to get out. I unlatched the door and he stepped back. He had the rake in one hand. He stepped back and taken it in both and I could tell he was mad, his voice was trembling some and I didn't get out, I closed the door and started to drive away. I said that I would see the field foreman before I leave here and see what's wrong.
Q 'And then what happened?
A 'He said, Pauline is his wife. I said,
Q 'Then what was said; what happened?
A 'He said, 'Well, those people are about to back out on taking that land and we want to sell it.'
Q 'And then what happened?
A 'I says,
Q 'Now relate in your own way just what happened and just----
A 'Well, he replied to that and said, And I says, 'Well, Bob, that may every bit be true and I had to sign a lot of papers the other evening.'
Q 'Then what did he say?
A 'He said, 'If you have blocked this deal, I'm going to beat your God damned old brains out.'
Q 'Then what happened?
A 'And I says, 'No, you ain't either.'
Q 'Then what happened?
A 'And he drawed the--he stepped back with one foot a little bit south and drawed the rake back to strike me.'
* * *
* * *
Q 'Then what happened?
A 'I went to shooting.
Q 'Were you frightened at the time?
A 'Yes, sir; I was frightened and scared, too. That rake would scare most anybody.
Q 'Did you believe that you were in danger or great bodily harm or death?
A 'I knew I was, I felt that I was.
Q 'And did you feel that what you did was necessary to protect yourself?
A 'I absolutely did, or I wouldn't have did it.' (emphasis supplied)
Reverting further to the testimony of the fruit picker Permon Nance, he testified that as he was returning to the grove and approaching the place where Stokes and the defendant were talking he heard shots, looked up and saw Stokes run around toward the rear of the truck in a crouched position, still carrying the rake; that as Stokes reached the rear of the truck he fell over on his back; that he, Nance, hid behind a tree and saw the defendant leave the truck and walk to the rear to look at Stokes; that he thought Darty was carrying what 'looked' like a rifle; and that he, Nance, after failing to attract a passing helicopter ran up to Black to inform him what had happened. Black, according to his own testimony, was just stepping out of his car when he heard shots, saw Stokes half bent over run around the truck and fall. Nance ran up saying, 'Lord have mercy' * * *. 'That man done shot Mr. Bob.' Black then drove up and Darty motioned him to stop and said to Black,
Another state's witness named Bennie Thomas testified on rebuttal that he heard three shots as he was going from the grove to the water keg. He stated that he saw Stokes' body of the ground and saw the defendant walk from the rear of the truck with a shotgun in his hand. According to the defendant's own version, he did not carry the shotgun to the rear of the truck when he went to look at Stokes; but he stated that he did remove the shotgun from the truck, load it and place it back in the cab. He explained this conduct by saying that he had heard of a person who had shot another in a similar situation and himself had been shot by an irate relative of the victim; and that he, the defendant, loaded the shotgun to protect himself in case of such need.
There was no eye witness to the actual shooting other than the defendant himself. On cross examination of the defendant it was brought out that during the shooting he remained in his truck within the cab, which had small window openings according to the evidence, and that Stokes was standing three or four feet away from the truck when he was shot.
Q 'What did he do when he saw you pull the gun and shoot him?
A 'He come on down with the rake, but he didn't hit me, he hit the ground right by the corner of the door and then ran.
Q 'He was far enough away from you that when he threw the rake down it came down and hit the ground. Is that correct?
A 'He made his--he made his lick short. He didn't come on as far as he...
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