Garner v. State

• Decision Date: 18 August 1891
• Citation: 9 So. 835,28 Fla. 113
• Parties: GARNER v. STATE.
• Court: Florida Supreme Court

9 So. 835

28 Fla. 113

GARNER v. STATE.

Florida Supreme Court

August 18, 1891

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

I. T Garner was convicted of the murder in the first degree of one Lasley, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An exception to a ruling denying a motion for a continuance is not waived by not making the ruling a ground of motion for a new trial.

2. A motion for a continuance rests in the sound discretion of the trial court. Where a motion of this character--this one being on the ground that the counsel of the accused was too sick to conduct the defense properly--has been refused, and it does not appear that there was an abuse of a sound discretion in refusing it, the appellate court will not interfere.

3. When the admissibility of threats is dependent upon the commission of an overt act by the deceased, there must be some evidence of the overt act; or, in other words, there must be evidence which at least tends to show that the deceased had, at the time of the killing, in fact or apparently, sought a conflict with the accused, or was actually or apparently making some demonstration of attack towards the accomplishment of his threats, or some demonstration reasonably calculated to induce the belief that the execution of the threatened attack had actually commenced. There must be at least apparently such a demonstration of an intention to execute immediately the threats as will naturally induce a reasonable belief that the party threatened will lose his life or suffer serious bodily harm if he does not immediately take the life of his adversary.

4. Threats admissible in connection with an overt act are so admissible because they serve to explain the demonstration or overt act, and to show the reasonableness of the accused in believing himself to be in that danger which justifies the taking of human life in self-defense.

5. The question of admissibility of evidence of threats is one for the court's decision. If there is the slightest evidence tending to prove a hostile demonstration which may reasonably be regarded as placing the accused apparently in imminent danger of losing his life or sustaining great bodily harm evidence of the threats should be admitted. It should be admitted, also, where the mind of the court is in a state of doubt whether or not the alleged demonstration, considered in connection with the threats, would be sufficient to cause a person of ordinary prudence to reasonably believe himself to be in danger of life or great bodily harm. They should not be excluded, except where there is no evidence tending to prove a hostile demonstration of the character indicated above.

6. The weight of evidence of threats, considered in connection with that as to the overt act, is, like that as to the credibility of the witnesses testifying as to such act or threats, a question for the jury. It is for the jury, after considering all the testimony relating to the circumstances of the homicide, to decide whether or not there was reasonable ground for a person of ordinary prudence to believe himself to be in imminent danger of losing his life or of sustaining great bodily harm at the hands of the deceased if he did not kill him.

7. Evidence of the violent and dangerous character of the deceased is admissible to show, or as tending to show, that a defendant has acted in self-defense; or, in other words under such circumstances as would naturally cause a man of ordinary reason to believe himself to be, at the time of the killing, in imminent danger of losing his life, or of suffering great bodily harm, at the hands of the deceased but such evidence is not admissible for this purpose except when it explains, or will give meaning, significance, or point to, the conduct of the deceased at the time of the killing, or will tend to do so; and such conduct of the deceased at the time of the killing, which it is proposed to thus explain, must be shown before the auxiliary evidence of such character can be introduced. There must be evidence of some demonstration on th part of the accused, which, though considered independent of the dangerous character of the deceased, would be regarded as innocent or harmiess, when received and considered in connection with or illustrated by such character may arouse a reasonable belief of imminent peril of the kind mentioned.

8. Where there is no evidence tending to show that the killing was in self-defense, or tending to show conduct upon the part of the deceased from which, even assuming that he was a violent and dangerous man, any inference can be reasonably drawn that he intended the immediate perpetration of an act imminently dangerous to the life of the accused, or of serious bodily harm to him, evidence of violent and dangerous character of the deceased is inadmissible. In such cases there is no conduct to be illustrated or explained by a violent and dangerous character. If, however, there is evidence of any demonstration upon the part of the deceased at the killing, which his dangerous character would reasonably and naturally aid, explain, or give point or significance to, as tending to make out a case of self-defense on the part of the accused, evidence of such character should be admitted. Its admissibility is not confined to cases in which there is doubt of the guilt of the accused, or of the degree of the homicide, or that the killing was in self-defense.

9. The question of the admissibility of evidence of a violent and dangerous character is for the court to decide. The weight of such evidence, when admitted, is a matter for the consideration of the jury, in connection with all the testimony as to the homicide.

10. The fact that there is testimony in conflict with that tending to show an overt act is not ground for excluding evidence of threats or of violent and dangerous character.

11. Proof of the violent and dangerous character of the deceased is to be made by evidence of the deceased's general reputation in the community for such character, and not by specific acts or general bad conduct.

12. If the record in a criminal cause purports to recite the oath as it was in fact administered to the jury, and such oath appears to be substantially different from that prescribed by law, it seems that a reversal will result; on the contrary however, if the record does not so purport, but merely imports that they jurors were in fact sworn, without anything negativing the presumption that they were duly sworn, the entry is sufficient; and it is a better form of entry than one reciting the oath, however accurately.

13. A record entry in a capital case which, after showing that the prisoner was arraigned and pleaded not guilty, states 'Whereupon came the following jurors, [naming them,] who were duly selected, chosen, impaneled, and sworn to try the issue joined,'--cannot properly be construed as purporting or having been intended to recite the oath prescribed by the statute for petit jurors in capital causes, which oath is as follows: 'You shall well and truly try, and true deliverance make, between the state of Florida and the prisoner at the bar, whom you shall have in charge. So help you God;' but should be construed as merely importing and intended to show that the jurors were in fact sworn properly, or that the above oath was administered to them.

14. Remarks made by the judge, in the course of a trial, as to the credibility of witnesses or the weight of relevant evidence, however inadvertently such remarks may be made, are the subject of exception and of assignment as error by the party to whom they may seem to be prejudicial, and are ground for reversing a judgment. The policy of our jurisprudence is that the jury shall decide all such questions, entirely liberated from the influence of the impressions of the judge as to them.

15. Voluntary intoxication, even though the immediate effect of it is to render the person unconscious for the time of what he is doing, or temporarily insane, as distinguished from a fixed or settled frenzy or insanity, either permanent or intermittent, resulting from such intoxication, does not excuse a homicide, or any act which, in the absence of such intoxication and unconsciousness or temporary insanity, the immediate effect of such intoxication, would be criminal. This is the general rule applicable wherever the voluntary doing of the wrongful act constitutes the crime, or a particular or specific intent is not an essential or constituent element of the offense; and in all such cases a person who is, at the time of the commission of the act, unconscious or insane, as the immediate consequence of voluntary intoxication, is liable in the same manner and to the same degree that he would be if sober.

16. In cases in which a specific or particular intent is an essential or constituent element of the offense, intoxication, though voluntary, becomes a matter for consideration, or is relevant evidence, with reference to the ability of the accused to form or entertain such intent. Where a person is too intoxicated to entertain or be capable of forming an essential particular intent, such intent cannot exist, and consequently the offense of which it is a necessary element cannot be perpetrated.

17. Where a premeditated design to effect the death of the person killed, or some human being, is essential to the offense of murder in the first degree, as it is in this state intoxication, though voluntary, is relative evidence to be considered by the jury as to its effect upon the ability of the accused at time of the killing to form or entertain such a design. If the jury find from the evidence that the accused was so much intoxicated as to be incapable of forming such a design, and yet...