Horne v. State
| Decision Date | 09 December 1959 |
| Docket Number | No. 1162,1162 |
| Citation | 116 So.2d 654 |
| Parties | Theodore HORNE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bayard B. Sellars, Fort Lauderdale, for appellant.
Richard W. Ervin, Atty. Gen., David U. Tumin, Asst. Atty. Gen., for appellee.
The appellant was convicted February 26, 1959, on an information charging him with murder in the second degree. The motion for new trial was denied and he was sentenced to a term of 25 years in the State Prison, which judgment and sentence was appealed to this court.
The defendant below, appellant here, went to the home of Moses Harris on Sunday afternoon, December 7, 1958, at approximately 4:45 o'clock to give Harris a receipt for his rent money. He went into the house and found Harris sitting at the dinner table with one Moses Watts eating some chicken. The defendant asked Harris for a piece of chicken and at the same time gave Harris the rent receipt. Harris got up from the table and walked over to the opposite wall to deposit the receipt in a bag kept for that purpose. In the meantime the defendant sat down in Harris' chair and commenced eating some chicken. Harris' wife, Katherine Harris, was across the room cooking dinner.
While Horne was eating he began telling Watts, the deceased, how he, Horne, would like to carry on with Harris' wife Whereupon Watts became indignant and asked, 'you go on like that in front of his wife?' and the defendant answered, 'Us do that all the time.'
Katherine Harris testified that the defendant continued talking about carrying on with her to Watts when Watts stated. 'Just so you don't tell me that,' and Horne, the defendant, answered, 'Well I wasn't talking to you, I'm talking to him.' Moses Watts then said, 'A little nigger like you come in my house and ask about something to eat, I'd whup you.' Upon direct examination, Katherine Harris testified as follows in regard to the actual shooting:
'Q. Just tell us what happened, if you know. A. Yes, he was telling my husband where to kiss, and this other man took it up, and so Horne said 'I ain't talking to you' and so it kept on and kept on, he did, and he say 'You got more to do with it than I have, I ain't talking to you,' and he said 'Just so you don't say nothing to me about it,' so Horne said 'Well I wasn't talking to you, but it will go for you if you want to take it up,' and at that time he jumped up and he grabbed Horne, and was pulling Horne over the table, and I see Horne went into--into his pocket, and I run back of the table then and the gun fired.
Just a few minutes prior to Horne's arriving at Harris' home, the deceased, Watts, had arrived coming from the direction of Ella Mae Williams' house. Ella Mae testified that on the afternoon in question Watts had been drinking; that he threatened her husband in regard to repayment of a $2 loan which had been made sometime ago; and then she summarized Watts' altercation with her husband thusly:
'Q. Just tell us that happened on that afternoon. A. On that afternoon? Well he kept giving his hand toward my husband, he asked my husband did he want him to let the barrel he was holding go off on him, he just kept cocking his finger like that, so my husband he say 'No,' he wouldn't fall out about $2.00, so he say 'Yeah, I never get too damn drunk not to know when a nigger pay me my damn money,' that's what he said, so I told my husband, I said 'Let's go over to Carrie's and Bill's, because this man is looking for trouble, and so I told him he'd have to leave because we was fixin' to go out, and when he hit the bottom step on the ground, he told my husband, he say 'Remember, if you ever meet me again, and don't have my $2.00' he say 'if you see me before I see you' he say 'you better hide yourself, because----'
The State objected to further testimony about what transpired between the deceased and the third party prior to the incident in issue, which objection was sustained by the court.
There was testimony that the defendant had worked for a Mr. Hayner for about nine years collecting rents for him and often had as much as $300 on his person and for that reason carried a pistol in his pocket. There was further testimony that this particular section of the Negro area was a troublesome section but that the defendant had never experienced any trouble in the past nor had he ever been short in his rent collections.
The defendant testified that when the deceased grabbed him, he started to get up and leave the table and get out of the house because he thought the victim 'was trying to catch me, he did catch me before I could get up out of the chair.' The defendant also stated that when the victim grabbed the defendant with his left hand the victim had his right hand in his pocket 'or in that area.'
The appellant states the following questions in his brief:
1. 'Did the Court err in rejecting testimony which would tend to show the disposition and state of mind of Moses Watts, the deceased, just prior to the encounter with the defendant?'
2. 'Was the evidence sufficient to sustain the verdict?'
The record contains no evidence that the defendant knew of Watts' prior altercation with Ella Mae Williams and her husband.
Cases admitting testimony concerning prior threats by the victim to the accused are not applicable. The general rule is stated in 40 C.J.S. Homicide § 210, at page 1119, wherein it is stated:
'* * * Evidence of prior difficulties between the victim and a third person * * * are inadmissible where not properly connected with the offense for which the accused is being tried * * *.'
This principle coupled with the fact that the defendant testified that he did not know the victim nor was he afraid of the victim until the altercation physically began, would appear to justify excluding the objected to testimony.
In passing, it should be noted that in proving a violent and dangerous character evidence must be shown by testimony of his general reputation in the community and not by specific acts of general bad conduct. See Palm v. State, 135 Fla. 258, 184 So. 881.
The defendant was charged with and convicted of murder in the second degree which is defined in Florida Statutes, Section 782.04, F.S.A., as follows:
'When perpetrated by any act imminently dangerous to...
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...the crime is deemed not relevant, and therefore inadmissable, unless it is connected with the offense in question. Horne v. State, 116 So.2d 654 (Fla. 2d DCA 1959). However, evidence concerning another's motive to commit the crime is relevant and should be admitted where the third party is ......
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