Davis v. State

• Decision Date: 04 March 1889
• Citation: Davis v. State, 25 Fla. 272, 5 So. 803 (Fla. 1889)
• Parties: DAVIS v. STATE.
• Court: Florida Supreme Court

5 So. 803

25 Fla. 272

DAVIS v. STATE.

Florida Supreme Court

March 4, 1889

Error to circuit court, Suwannee county; JOHN F. WHITE, Judge.

Syllabus by the Court

SYLLABUS

The defendant was indicted for assaulting one Randall Farnell with a gun, a deadly weapon, from a premeditated design to effect the death of Farnell.The evidence shows that defendant presented his gun at Farnell in carrying distance but does not show that the defendant fired the gun, or that he attempted to fire it, nor does the evidence show that the gun was loaded.Held, that this evidence does not show an assault with intent to murder.

COUNSELJ. C. Gallaher, for plaintiff in error.

Attorney General, for the State.

OPINION

MITCHELL J.

The plaintiff in error was tried and convicted at the fall term of the circuit court, Suwannee county, 1887, for assault with intent to murder one Randall Farnell.The defendant moved for a new trial, which motion was overruled, and the case is now here upon writ of error from the order of the circuit court overruling said motion.

The only error assigned is that the court refused to grant a new trial.The grounds of motion for new trial are: (1) The verdict is contrary to law.(2) Contrary to charge of the court.(3) The verdict is contrary to the evidence, and the weight of evidence.(4) The evidence is not sufficient to sustain the verdict.

There is nothing in the record to show what the charge of the circuit court was, and we understand that this ground of the motion is abandoned by the plaintiff in error.The other grounds of the motion may be considered together.

The defendant was indicted under section 29, p. 354, McClel.Dig., which is as follows: 'Whoever assaults another with a deadly weapon, with a premeditated design to effect the death of the person assaulted, shall be deemed guilty of an assault with intent to murder, and, upon conviction, shall be punished by imprisonment in the state penitentiary not less than two years, and not more than seven, or by fine of not less than five hundred dollars.'The indictment charges that on, etc., at, etc., the defendant, with force and arms, in and upon one Randall Farnell then and there being, an assault did make, and with a certain gun, a deadly weapon, then and there loaded and charged with gunpowder and leaden bullets, which said gun the said Perry Davis in his hands then and there had and held with a premeditated design to effect the death of him, the said Randall Farnell, did then and there present the said deadly weapon, to-wit, said gun, at and against him, said Randall Farnell, with intent him, said Randall Farnell, then and there to kill and murder.'

To sustain the indictment the state introduced a number of witnesses, who testified as to the facts and circumstances of said alleged assault, but we only deem it necessary to give the substance of the evidence, which tends to show that prior to said alleged assault there had been bad blood between the defendant and Randall Farnell, growing out of a prosecution instituted by Farnell against the defendant, accusing the defendant of poisoning his (Farnell's) mare and colt.The case had been tried, and the defendant acquitted.Shortly after said trial a lot of geese belonging to said Farnell died, and it was supposed that they too had been poisoned.The defendant and Farnell lived near each other, and the geese, supposed to have been poisoned were in a lane near the residences of said parties, and at the time of the alleged assault by the defendant a crowd of persons had gathered around the dead...