Eiland v. State, 621

Decision Date27 May 1959
Docket NumberNo. 621,621
Citation112 So.2d 415
PartiesGlenn EILAND, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

L. Grady Burton and John W. Burton, Wauchula, for appellant.

Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.

KANNER, Chief Judge.

Appellant was charged with and found guilty of assault with intent to commit murder in the first degree and was sentenced to twenty years in the state prison. He instituted this appeal primarily on the proposition that the evidence under which he was convicted by the jury was not sufficient to sustain the charge, but that the offense could have been, at most, no greater than that of assault with intent to commit manslaughter.

The narrative of this case as it emerges through the record begins at approximately 10:00 o'clock on the night of Halloween, October 31, 1957, with a telephone call to the wife of the principal state's witness, Deputy Sheriff Murdock, from appellant's wife reporting that her husband was drinking and 'pestering' her and requesting that Murdock come at once. The deputy not being armed with a warrant proceeded to appellant's home where he, attired in official uniform and driving a regulation green and white sheriff's patrol car, parked at the curb adjacent to appellant's front yard. The lights were on in appellant's house and the surrounding terrain was illuminated by a street light.

Prior to the officer's arrival, appellant went in and 'got his pistol,' saying that he wasn't going to jail; and, being angry with his wife because he had heard her call 'the law,' again started berating her and, in his words, 'cussing her out' for telephoning Murdock. When the deputy arrived, he was met in the front yard by appellant's wife. From this point on the narrative is fraught with conflicting statements and versions. However, the wife testified that when she met Murdock, she told him that '* * * Glenn was drunk and had a pistol.' The deputy recounted that she further stated '* * * he's going to kill you.'

The story is then resumed with the emergence of appellant from the house with a pistol in his belt. Murdock tells that appellant asked him if 'I was looking for him and I told him I was * * * he told me I'd better start drawing. And I told him I didn't intend to draw with him. And he repeated that several times then and I was talking to him all the time, trying to get him to put his pistol down * * * I even went so far as to tell him that if he'd throw his down, I'd throw mine down and which he didn't do. He told me that he had gone too far to stop now * * *' Appellant tells that when he came from his house he told the deputy to leave his home but that the officer continued the verbal encounter with him; that during the course of the conversation, each asked the other to put his gun down, although neither did so. Appellant's wife, standing in front of the deputy, told her husband to go in the house, that 'If you shoot anybody it will be me.'

The next step of the altercation was the firing of a shot by the appellant, according to his story, into the ground; Murdock said he could not see the direction of the shot. Thereupon appellant withdrew from the deputy's line of vision to the rear of the house; and the officer went to his automobile, opened the door on the side opposite the appellant's house, and radioed for help while crouching on the floor of the vehicle.

Meanwhile, appellant, departing his own premises, crossed the street to the opposite sidewalk where Murdock was within his unobstructed line of vision, called to the deputy to ask what he had in his hand, and the deputy responded that it was his pistol. Murdock states that he then started walking toward appellant with his pistol in his hand, telling him he was going to put him in jail and enjoining him to put his gun down, with appellant voicing refusal; that he crossed the street to the sidewalk, whereupon the shooting began. The deputy was wounded in the leg and hips, which wounds ultimately necessitated amputation of his left leg. Murdock states that appellant fired the first shot in that phase of the encounter in addition to having previously fired a shot in his own yard, that the shot struck him and knocked him down, and that he, Murdock, first fired as he was falling.

Appellant's version of this phase is that when the deputy crossed the street and proceeded toward him, appellant's gun was in his belt; that appellant, as the officer approached him, backed up into the vacant lot beyond the sidewalk; that the deputy ran toward him in a crouching position, firing his gun twice, the first shots fired; and that the verbal encounter previous to that had been as to who would first lay his pistol down. Appellant stated that he shot his own pistol empty, then ran rapidly through the vacant lot, waded around a lake for about the distance of a mile; that he had shot at the deputy but, further, that his first knowledge that he had hit Murdock came when he later telephoned his wife, whereupon he called the sheriff and voluntarily surrendered. Elsewhere he testified that he saw Murdock fall but did not see him lying on his back. All the parties testified that appellant and Murdock had known each other for many years, that they had been on friendly terms, and that appellant knew Murdock was a sheriff's deputy.

Appellant principally premises his position that the evidence sustains no greater charge than that of assault with intent to commit manslaughter upon the propositions that there has been shown no intent to commit murder and that the difficulty between him and Murdock was a mutual combat.

In support of his argument that no intent to murder has been shown, appellant cites the case of Davis v. State, 1889, 25 Fla. 272, 5 So. 803. In that case there had been bad blood between the defendant and one Farnell. The evidence shows that the defendant presented his gun at Farnell in carrying distance, but does not show that the defendant fired the gun, or that...

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3 cases
  • Rodriguez v. State
    • United States
    • Florida District Court of Appeals
    • December 22, 1983
    ...880 (1925); Pridgeon v. State, 425 So.2d 8 (Fla. 1st DCA), rev. denied, 421 So.2d 68 (1982) 5; (2) in mutual combat, Eiland v. State, 112 So.2d 415, 419 (Fla. 2d DCA 1959) ("[M]utual combat is predicated upon the proposition that both parties involved are at fault, neither being the aggress......
  • In re Standard Jury Instructions in Criminal Cases—Report 2017-06
    • United States
    • Florida Supreme Court
    • February 8, 2018
    ...the Comments section to include a sentence providing that "mutual combat resulting in death is Manslaughter" citing to Eiland v. State , 112 So.2d 415 (Fla. 2d DCA 1959).Finally, new instruction 7.13 covers the reclassification statute, section 782.065, Florida Statutes, and is based upon o......
  • Simmons v. Maule Industries, Inc., 59-153
    • United States
    • Florida District Court of Appeals
    • May 27, 1959

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