Disney v. State

Decision Date19 December 1916
Citation72 Fla. 492,73 So. 598
PartiesDISNEY v. STATE.
CourtFlorida Supreme Court

Error to Circuit court, Orange County; Jas. W. Perkins, Judge.

James M. Disney was convicted of manslaughter, and he brings error. Affirmed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Where an indictment for murder in the second degree may be defective in charging that crime, but is sufficient to charge the crime of manslaughter of which the defendant is found guilty, the judgment will not be arrested because the indictment fails accurately to charge the crime of murder.

Motions in arrest of judgment, based upon informal or imperfect allegations of essential in the indictment, should not prevail unless the indictment wholly fails to allege the crime or an essential element of the crime, or is so vague and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after acquittal or conviction to substantial danger of a new prosecution for the same offense.

Informal or imperfect allegations of essential facts in an indictment should be taken advantage of by motion to quash.

No reversible error is committed by the trial court in giving instructions which, when considered together, are free from error prejudicial to the defendant.

Every portion of a charge bearing on a subject must be considered in determining whether the charge upon such subject is free from error.

It is not error for the court to refuse certain requested instructions, when the substance of such requested instructions had already been covered by charges given.

Evidence examined and found sufficient to support the verdict.

COUNSEL Davis & Giles, of Orlando, for plaintiff in error.

T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

James M. Disney was indicted for murder in the second degree by the grand jury of St. Lucie county for killing Daniel S. Carlton. Upon the application of the defendant below a change of venue was ordered to Orange county after one trial in St. Lucie county, which resulted in a failure of the jury to agree on a verdict. A trial in Orange county held in May, 1916, resulted in a verdict of manslaughter against the defendant. To the judgment entered upon that verdict the defendant took a writ of error, and has assigned 12 errors. Of the errors assigned the defendant has abandoned the third and seventh.

The eleventh assignment rests upon an order overruling a motion in arrest of judgment attacking the sufficiency of the indictment.

'Murder in the second degree,' as defined by our statute, is the unlawful killing of a human being 'when perpetrated by any act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.' Section 3205, General Statutes of 1906, Florida Compiled Laws of 1914.

The indictment charged the defendant, Disney, with unlawfully shooting at Carlton 'in manner imminently dangerous to the said Daniel S. Carlton, the said James M. Disney then and there thereby in such manner evincing a depraved mind and regardless of human life, without a premeditated design to effect the death of the said Daniel S. Carlton,' thereby striking Carlton with the leaden bullets in the body and inflicting a mortal wound of which he died. Counsel for plaintiff in error contend ingeniously that it is the quality of the act, and not the manner of the defendant in its performance, that stigmatizes it as unlawful; that the act which caused the death of Carlton might have been lawful while the manner of the defendant in committing it may have evinced a depraved mind. It is true that the manner of one in the performance of a lawful act may, under some circumstances, evince a depraved mind which the act itself, irrespective of the manner of its performance, might not imply; but if the act was unlawful the manner of its performance would not invest it with the character of lawfulness.

The indictment in this case charges the act to have been unlawful, and, while the idea of premeditation is excluded because not charged, it also by its terms excludes the idea that the act was either excusable or justifiable. Even if the indictment was insufficient as charging murder in the second degree, it is sufficient to charge manslaughter, of which the defendant was convicted. See Brown v. State, 18 Fla. 472.

A motion in arrest of judgment, based upon informal or imperfect allegations of essential facts in the indictment, should not prevail unless the indictment wholly fails to allege a crime or an essential element of a crime, or is so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. Barineau v. State, 71 Fla. ----, 72 So. 179; Sumpter v. State, 62 Fla. 98, 57 So. 202; Robinson v. State, 69 Fla. 521, 68 So. 649, L. R. A. 1915E, 1215. While the indictment in this case may have been vulnerable to attack by a motion to quash it on account of the inaccurate language used to describe the act which resulted in Carlton's death, it cannot be said that the language used was so utterly obscure and misleading as to embarrass the accused in the preparation of his defense, and because of the rule that the indictment on a motion in arrest of judgment should receive a liberal construction and the fact that it sufficiently charges manslaughter, the offense of which the defendant was convicted, the motion was properly overruled.

After giving a charge upon murder in the second degree and illustrating how the offense may be committed, the court charged the jury upon the subject of manslaughter in the following language:

'(3) The killing of a human being by the act, procurement, or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide, as hereinafter defined, nor murder in any of its degrees, is manslaughter. Thus a killing done in sudden heat of passion, without any premeditated design to effect death, but not being done under such circumstances as would make it justifiable homicide as hereinafter defined, would be manslaughter. And where two men engage in mutual combat, both being at fault, and neither being the aggressor more than the other, and in such combat one slay the other, such killing is manslaughter.'

The defendant by his counsel excepted to this charge, and it is made the basis of the first assignment of error. The second assignment raises the same question as the first. It is based upon the eleventh charge, which was duly excepted to by defendant and was as follows:

'(11) Or, if you believe from the evidence, beyond a reasonable doubt, that the defendant, James M. Disney, in the county of St. Lucie and state of Florida, at any time within two years prior to the finding of the indictment, shot and killed the deceased, Daniel S. Carlton, and that he did so in a mutual combat between the defendant and the said Daniel S. Carlton, both of them being at fault, and neither being the aggressor more than the other, it will be your duty to find the defendant guilty of manslaughter.'

The criticism made of these two charges is that the first contains an instruction upon the subject of mutual combat, which was not warranted by the evidence; that the second repeated the error of the first and assumed the fact that neither the defendant nor the deceased was the aggressor, but that both were at fault. Neither instruction assumes the fact of a mutual combat to have been established by the evidence. The first reference to a mutual combat was by way of explanation, as that when one kills another under such circumstances, both being at fault and neither being the aggressor, such killing would be manslaughter; and, in the second reference to it, the jury were told that if they believed from the evidence beyond a reasonable doubt that the defendant killed Carlton in a mutual combat, both being at fault and neither being the aggressor, they should find the defendant guilty of manslaughter. Construing the two charges together, we think that it is apparent that the court did not assume the fact to be established, nor was the point unduly emphasized to the exclusion of the defense of self defense. The law on the subject was correctly stated in the charges. See 1 Wharton's Crim. Law, 617; Giles v. State, 126 Ga. 549, 55 S.E. 405; Wharton on Homicide, 536-538. Moreover, the defendant was charged with murder in the second degree; by the instructions complained of, the jury were permitted, if they saw fit, to convict of manslaughter instead of murder. If there was error, it seems to have been more prejudicial to the state than the defendant, because, the plea of self-defense being rejected by the jury, the defendant is not in a position to complain that the charge permitted a conviction of a lesser degree of homicide than the one charged in the indictment. The plaintiff in error must not only make the error complained of to appear, but he should show that it was prejudicial. Cross v. Aby, 55 Fla. 311, 45 So. 820; Brown v. State, supra; Danson v. State, 62 Fla. 29, 56 So. 677; McKay v. Lane, 5 Fla. 268; Hooker v. Johnson, 10 Fla. 198; State v. Quick, 150 N.C. 820, 64 S.E. 168. We see nothing in these charges which precluded the jury from considering the evidence as to self-defense.

As to the point that there was no evidence to which a charge upon the law of mutual combat was applicable, we think it is not well taken. There was evidence to which the charge was applicable and from which the jury might very readily...

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29 cases
  • Rodriguez v. State
    • United States
    • Florida District Court of Appeals
    • December 22, 1983
    ...to excite such anger as might obscure the reason or dominate the volition of an ordinary reasonable man"); Disney v. State, 72 Fla. 492, 502, 73 So. 598, 601 (1916) (when the mind operates in the heat of passion, "pre-meditation is supposed to be impossible, and depravity which characterize......
  • Wadsworth v. State, 596
    • United States
    • Florida District Court of Appeals
    • August 14, 1967
    ...29; Hopkins v. State, 1906, 52 Fla. 39, 42 So. 52; Jackson v. Citizens' Bank & Trust Co., 1907, 53 Fla. 265, 44 So. 516; Disney v. State, 1916, 72 Fla. 492, 73 So. 598; Peterson v. State, 1925, 90 Fla. 361, 106 So. 75; O'Steen v. State, 1926, 92 Fla. 1062, 111 So. 725; and Prior v. Pounds, ......
  • Rozzelle v. Sec'y, Florida Dep't of Corr.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 29, 2012
    ...kills in the heat of passion is “intoxicated by his passion” and in a “condition of frenzy and distraction” (quoting Disney v. State, 72 Fla. 492, 73 So. 598, 601 (1916))). More importantly, Petitioner Rozzelle's taped, post-arrest statement did not evoke the “blind and unreasoning fury” ch......
  • Winland v. Sec'y, DOC
    • United States
    • U.S. District Court — Middle District of Florida
    • March 22, 2019
    ...fury to redress his real or imagined injury, and while in that condition of frenzy and distraction fires the fatal shot." Disney v. State, 73 So. 598 (Fla. 1916); see also, e.g., Palmore v. State, 838 So. 2d 1222 (Fla. 1st DCA 2003) (example of valid heat of passion defense). This claim is ......
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