Forehand v. State

• Decision Date: 10 December 1937
• Parties: FOREHAND v. STATE.
• Court: Florida Supreme Court

177 So. 550

130 Fla. 355

FOREHAND v. STATE.

Florida Supreme Court, Division A.

December 10, 1937

Error to Circuit Court, Washington County; Ira A. Hutchison, Judge.

Pleas Forehand was convicted of second degree murder, and he brings writ of error.

COUNSEL

Mathis, Mathis & Mathis, of Panama City, and Carter & Pierce, of Marianna, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.

OPINION

TERRELL Justice.

This case has been here before. See Forehand v. State, 126 Fla. 464, 171 So. 241, where it was reversed because the evidence in support of premeditation was found to be insufficient, the charge being murder in the first degree. On remand, a change of venue was granted, and the case was transferred to Washington county where, on second trial, the plaintiff in error was convicted of murder in the second degree and sentenced to life imprisonment. He now seeks to be relieved of the latter judgment by writ of error.

The case grew out of these facts: On the night of September 7 1935, the plaintiff in error and his brother were arrested by William D. Pledger, a deputy sheriff, at the Night Owl Club a roadhouse near Panama City in Bay County. They resisted being taken in custody, a tussle ensued in which Pledger and the brother of plaintiff in error clenched and fell to the ground, the plaintiff in error snatched Pledger's pistol from the holster, discharged it several times at Pledger, but in fact killed both his brother and Pledger.

On this writ of error, it is first contended that reversible error was committed in permitting the bond of Pledger as deputy sheriff and the minutes of the Board of County Commissioners approving said bond to be introduced in evidence.

In support of this contention, the plaintiff in error relies on Stinson v. State, 76 Fla. 421, 80 So. 506, and like cases. If he had been in position to defend on the ground that the murder of Pledger was committed in the discharge of official duty, there might have been substance to this contention, but the evidence shows that plaintiff in error and his brother resisted the arrest because Pledger had not arrested some CCC boys with whom he (plaintiff in error) had engaged in a fracas shortly before. It is shown that there would have been no resistance if the CCC boys had been arrested.

The evidence shows that Pledger was appointed deputy sheriff of Bay County in 1933; that his bond was made and approved; that his appointment was never canceled; that he was a special deputy and was not on duty all the time ; that he had been sent to the Night Owl Club by the sheriff to keep order; and that plaintiff in error knew he was a deputy sheriff. It is also shown that he had paid only one annual premium on his bond.

Since it is shown that plaintiff in error knew that Pledger was reputed to be a deputy sheriff, the fact of whether or not he was commissioned or bonded was unimportant and was not available to him as a defense to the crime. Under the facts proven and the defense available, their introduction in evidence could have had no harmful effect. Mathis v. Carpenter, 95 Ala. 156, 10 So. 341, 36 Am.St.Rep. 187; Earl v. State, 124 Ga. 28, 52 S.E. 78.

Other assignments urged for reversal are predicated on the fact that the premiums on Pledger's bond as deputy sheriff had been permitted to lapse, that he was not in consequence a...