Forehand v. State

• Decision Date: 11 December 1936
• Citation: 171 So. 241,126 Fla. 464
• Parties: FOREHAND v. STATE.
• Court: Florida Supreme Court

171 So. 241

126 Fla. 464

FOREHAND v. STATE.

Florida Supreme Court

December 11, 1936

En Banc.

Error to Circuit Court, Bay County; E. C. Welch, Judge.

Pleas Forehand was convicted of murder in the first degree, and he brings error.

Reversed and remanded for a new trial.

COUNSEL C. R. Mathis and Robert Mathis, Jr., both of Panama City, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

ELLIS Presiding Justice.

Pleas Forehand was on the 10th day of October, 1935, convicted of the murder in the first degree of William D. Pledger in the county of Bay and seeks to reverse the judgment of conviction on writ of error.

The person alleged to have been killed by Forehand was William d Pledger, and the offense was alleged to have been committed in Bay county on the 7th day of September, 1935.

The controlling point in this controversy is whether the evidence discloses a premeditated design on the part of the accused to take the life of the deceased or some other person.

The evidence discloses in substance the following facts, that is to say, the jury was reasonably justified from the evidence in finding that such facts existed: William D Pledger, the deceased, died on September 9, 1935, from a mortal wound inflicted by a gunshot or pistol shot in the back near the vertebral column in the dorsal region. The bullet penetrated the body, inflicting wounds in the intestinal tract and making its exit in front of the body in the abdominal region. That shot was fired by the accused Pleas Forehand, during the evening of September 7, 1935. There is located on the highway about ten miles from Panama City a night club called the Nite Owl Club, a place where drinks of different kinds are sold and where dancing at certain hours is participated in by patrons of the club. On Saturday night, September 7th, Pleas and Lonnie Forehand, brothers, went to the night club on a truck driven by a man named Slay. They arrived at the scene of the difficulty about 8 or 9 o'clock. The driver turned the truck in from the highway and stopped near the south end of the club building near the dance hall. Several young men, some of whom were from the CCC Camp nearby, were upon or near the highway a short distance eastward of the clubhouse. Pleas and Lonnie Forehand went from the truck, from which they dismounted, to the group of young men assembled upon or near the highway. In a short while an altercation arose, resulting in a fight in which a man named Shriver, who came to the clubhouse in the truck, with Slay and the two Forehand boys, took part with the two Forehand brothers. In that difficulty Shriver had his clothing torn and he was slightly wounded by the use of a knife in the hands of one of the Forehands. Pledger, who was a deputy sheriff employed at the club, was present.

There is evidence in the record from which it can be reasonably determined that the altercation which ensued at or near the highway was participated in by the Forehand boys, if indeed not the result of a declared purpose by them to 'take the place' and handle Pledger if he interfered. In a short while the accused entered the dance hall, showing some evidence of having been in a fight, and appealed to a man named Burke, who was officiating as dance caller, to assist him against the CCC boys, whom the accused said were fighting 'us,' meaning probably himself and brother. Burke told him to leave the hall, which he did, and immediately thereafter he became involved in an altercation with Pledger, the deceased, who inquired as to the trouble, whereupon the accused reiterated the charge that the CCC boys had been fighting 'them.' Pledger thereupon undertook to take both the accused and his brother Lonnie away from the place. He suggested that they go with him. The accused struck Pledger in the face, and Pledger replied with a blow from his blackjack. Thereupon the difficulty arose in which the accused shot and killed Pledger.

In the struggle which ensued between Pledger and the two Forehand brothers and William Burke, Lonnie Forehand secured the blackjack and attempted to strike Pledger with it. They grappled, and Lonnie Forehand and Pledger fell to the ground, after the accused had seized the pistol worn by Pledger in a holster. He fired upon the two men on the ground four of five times, the last shot being the one which struck Pledger in the back, because from that moment he began to make exclamations indicative of pain.

As a result of the difficulty, both Lonnie Forehand and Pledger died from wounds received by them in the altercation. Such were the facts which the jury were reasonably justified in finding to be true.

Murder in the first degree is defined in this state by section 7137, C.G.L.1927, to be:

'The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary, shall be murder in the first degree.'

A premeditated design to take the life of the person killed or any human being is an essential element of the crime of murder in the first degree. The fact of premeditation may be established by circumstances as any other fact and must exist an appreciable length of time before the killing so that the perpetrator of the act may know and be conscious of the nature and character of the act which he is about to commit and the probable result therefrom in so far as the life of the assaulted person is involved. See Yates v. State, 26 Fla. 484, 7 So. 880; Robinson v. State, 69 Fla. 521, 68 So. 649, L.R.A.1915E, 1215, Ann.Cas.1917D, 506.

Premeditation has been defined by this court to mean intent before the act, but not necessarily existing any extended time theretofore. Ernest v. State, 20 Fla. 383; Lowe v. State, 90 Fla. 255, 105 So. 829, 831, holding that the intent to kill may enter the mind of the killer a moment before the act; Savage v. State, 18 Fla. 909; Barnhill v. State, 56 Fla. 16, 48 So. 251; Carter v. State, 22 Fla. 553; Buchanan v. State, 95 Fla. 301, 116 So. 275; Rhodes v. State, 104 Fla. 520, 140 So. 309; Wooten v. State, 104 Fla. 597, 140 so. 474.

The substance of the holding in these cases upon the subject of premeditation as an element in the offense of murder is that, if the purpose or intention to kill is definitely framed in the mind of the killer and he proceeds to act in the execution of such thought or design, the element of premeditation exists. It is not a question of how long the definite design or purpose to kill has been entertained by the killer. It is only sufficient that the evidence adduced shows to the exclusion of a reasonable doubt that the purpose to kill was definitely formed and definitely acted upon an appreciable length of time prior to the commission of the act which resulted in the taking of human life.

In the Lowe Case, supra, Mr. Justice Terrell referred to the language of State v. McCormac, 116 N.C. 1033, 21 S.E. 693, and to Wharton on Criminal Law and said:

'In the first place, if, in order to make murder in the first degree, it is necessary that the idea should be proved to have been conceived a week or a day ahead, there will be no murder in the first degree at all, for the guilty party will take care that the conception be concealed until the limitation is passed. In the second place, all psychological investigation shows that...