Hicks v. State

• Decision Date: 29 June 1889
• Citation: 6 So. 441,25 Fla. 535
• Parties: HICKS v. STATE.
• Court: Florida Supreme Court

6 So. 441

25 Fla. 535

HICKS v. STATE.

Florida Supreme Court

June 29, 1889

Error to circuit court, Escambia county; JAMES T. McCLELLAN, Judge.

Syllabus by the Court

SYLLABUS

1. Where there is conflicting evidence in a case it is the duty of the jury, if they can, to reconcile the conflict, but if they cannot do so it is their duty to discard any evidence they do not believe, and to render their verdict upon the evidence they may believe to be true.

2. The verdict of a jury will not be set aside upon the ground that it is against the weight of evidence, unless the preponderance is such that it must have been produced by considerations other than a due respect to the evidence.

3. Malice and the premeditation necessary to be proved to show murder in the first degree may be legitimately inferred by the jury, as a question of fact, from the circumstances of the case.

4. An application for a continuance is always addressed to the sound discretion of the court, and such discretion will not be controlled by the appellate court, unless it appears that the court below abused its authority, whereby the rights of the party may have been jeopardized.

5. Where a party is on trial charged with murder in the first degree, it is the duty of the court to charge the jury as to the different degrees or grades of homicide applicable to the evidence in the case, but it is not the duty of the court to charge upon a degree of homicide to which the evidence of the case does not apply.

6. It is not error, even in a capital case, for the jury to embody in their verdict a recommendation to the mercy of the court.

COUNSEL J. D. Thompson, for plaintiff in error.

W. B Lamar, Atty. Gen., for the State.

OPINION

MITCHELL J.

William Hicks, the plaintiff in error, was tried at the spring term of the circuit court of Escambia county, 1888, for the murder of Joseph McMillan, and was convicted of murder in the first degree, with a recommendation to the mercy of the court by the jury. A motion for a new trial was made, but the motion was overruled, and the court sentenced the defendant to imprisonment in the state penitentiary for the term of his natural life, and the case is before this court upon writ of error from the order of the court overruling such motion.

The errors assigned are (1) that the verdict of the jury is contrary to law; (2) that the verdict is contrary to the evidence, and against the weight of the evidence; (3) the court erred in refusing a continuance on defendant's application; (4) the court erred in the second paragraph of its charge to the jury; (5) the court failed to charge the jury as to the relative degrees of manslaughter; (6) the court erred in its last charge to the jury,--that is to say, the eleventh paragraph; (7) the recommendation to mercy was part and parcel of the verdict.

There is nothing in the first error assigned. We cannot see wherein the verdict was contrary to law.

As to the second assignment, the evidence sent up in the record conduces to show that there had been had blood between the defendant and McMillan, the deceased, and that on the night of the 25th of December, 1887, there was a dance at Molino and that the defendant and the deceased were in the vicinity where the dance was going on, and that they passed each other, each being accompanied by several friends. The following is the substance of the evidence in the case:

O. A Richardson, sworn for the state, says: 'I know William Hicks. Kenw Joe McMillan in his life-time. He is dead. Saw him the night of the 25th of December last. I saw him dead on the noon of the 26th, in the public road at Molino, Escambia county, Fla. I live at Molino. I was waked up by George Beard, and went around the fence, and found the dead body on the side of the road. Examined the body, and found he was shot. Wound was about the size of my finger. Had on overcoat and coat and vest and shirt. Ball had penetrated the overcoat. I opened clothing, and examined wound. Clothing was scorched. Very little discharge of blood. He was lying on his back. Dead body was still warm. No one there when I got there. Others came up afterwards. Joe McMillan lived at Pine Barren. It is north from Molino. His residence is on same side as mine. The road where the body was found led out to the main Pensacola road, and led to Pine Barren. Wound was just below the bone of the chest. It seemed to go straight into the body. I did not see the shooting. I judge from the appearance of the wound he was shot. Looked like a wound made by a pistol. Seemed to be a 38 caliber.

Robert Roland, a witness for the state, says: 'We went on towards where they were having a dance; that was, myself, Asa Roberts, George Beard, and McMillan. Dance was out towards west. We went west from the place where I met McMillan. After having gone about 200 yards, we met Hicks,--Hicks, Bob Broxton, Jesse Floyd, and Bob Mclaughlin. I mean the defendant by William Hicks. They all passed me but Bob Broxton, and he said, 'Here is Joe McM. to back Bob Roland.' Joe McM. said he would back anybody from Pine Barren. Joe McM. did not stop, but went on. Joe McM. and Asa Roberts were walking in front, and I and George Beard followed on behind. They went on a little way, and turned back. Hicks, Bob McL., Jesse Floyd, and Bob Broxton came on behind us. After they passed us, going east, as we were going west, Hicks said: 'There is Joe McMILLAN, THE D----- S----- OF A B-----. i have been laying off to kill him for some time, and if he gets in ten feet of me to-night I'll kill him.' They were going east towards the railroad when they turned back. When they got up to us. Hicks was cursing McM. He had his pistol in his hand, flourishing it, and saying he was going to kill Joe McM. if he got in ten feet of him. He had been laying off to kill him. He said, 'By G-----, he had been laying off to kill Joe McMillan, and if he got in ten feet of him he would kill him.' Bob Broxton and I caught hold of him, and advised him (Hicks) not to have any trouble with Joe. He was drinking. He kept on cursing, saying he would kill Joe. * * * He still had his pistol in his hand. We were all going in the same direction. Asa Roberts was still going up the hill with McM. McM. said nothing to Hicks till he turned around. Hicks was about four or five steps of him when he turned around. Hicks had followed about 100 or 150 yards before he turned around. When McM. turned around Hicks had his pistol in his hand, and said he was going to kill McM. Hicks was talking in a loud tone. When McM. turned around, and placing both hands on Hicks,--The lappels of his coat,--and said: 'Is that you, Will Hicks?' Did not see any pistol in McM.'s hand. I still had hold of Hicks. If McM. had a pistol, I did not see it. When McM. turned, and said, 'Is that you, Will Hicks?' he did not offer any violence to Hicks. Don't know where Asa Roberts went when they clinched. When they clinched I had hold of Hicks, and Grice ran up with a knife, and said, 'Turn Will Hicks loose.' Hicks said keep the dogs off, and I will fix him. Bob Broxton said I will keep them off. They were then on the ground. When they clinched Joe McM. went backwards, and when I looked back they were on the ground. Don't know who was on top. Heard two pistol shots fired close together. When Broxton made that remark Hicks was on top. McM. asked Hicks to get up off of him. Hicks got up. McM. got up, and asked if he had a friend there. I replied: 'I am your friend.' He started towards me, and said, 'Bob, I am shot through and through,' and laid down. He said nothing more after he laid down, and died. I shook him, and asked him if he was shot. He made no reply. When I said I was a friend to McM., Bob Broxton was walking up and down, and said: 'Keep your mouth shut; don't know anything about this, or you will get yourself in trouble.' When I said I was a friend to McM., and was going to tell Judge McM., he (Hicks) asked what McM. had to do with it, and said: 'I have killed one son of a b-----, and if you fool with me I will kill you too.' Jesse Floyd was there, too, when Broxton said, 'Know nothing about it.' When Hicks came up to McM., and McM. turned around, Hicks had his pistol up in the air. Don't know what position Hicks had his pistol when he was on top. I saw Hicks standing by the fire-place, with pistol in his hand, after he shot McM. I told Hudson to look around and see if he could find anything of a pistol. Witness had a lamp, and looked also. No pistol was found near the dead body of McMillan.' On cross-examination, witness said he 'met Hicks about 12 or 1 o'clock on the night of the killing. That the parties got into scuffle,--got on the ground. Heard two pistol shots when they were on the ground. Don't know who fired them.'

G. M. Gentry, for state, says: 'I acted as coroner, and examined the body. He was shot in the soft cavity, at the lower end of the breast-bone. Wound made with a 38 or 40 caliber. He was burned, and shot must have been fired at close range. Saw him last on the 25th of December. I turned him on his face, and saw a place I thought to be the locality of the bullet between shoulders. It had turned dark. Bullet hole in overcoat was lower than wound in body. Must have been fired ranging upwards. There was a dark place. Seemed to be the settlement of blood.'

F. G. Renshaw, physician and surgeon, says: 'I have heard the testimony of preceding witnesses. Such a wound would produce death. Wound in a similar place as described would produce death in a strong, healthy man.'

Asa Roberts, a witness for the state, corroborates the evidence of Robert Roland in every material point.

Jesse Floyd, for defense, says: 'I and McLaughlin and Broxton went from the dance to Smith's Hall, and we went back to...