Irvin v. State

• Decision Date: 01 January 1883
• Citation: 19 Fla. 872
• Parties: GEORGE W. IRVIN, PLAINTIFF IN ERROR, v. THE STATE OF FLORIDA, DEFENDANT IN ERROR
• Court: Florida Supreme Court

19 Fla. 872

GEORGE W. IRVIN, PLAINTIFF IN ERROR, v. THE STATE OF FLORIDA, DEFENDANT IN ERROR

Supreme Court of Florida

January 1, 1883

Rehearing Denied 19 Fla. 872 at 893.

Original Opinion of January Term, A. D. 1883, Reported at: 19 Fla 872.

Writ of Error to the Circuit Court for Franklin County.

The facts of the case are stated in the opinion.

Judgment affirmed.

D. S Walker, Jr., for Plaintiff in Error.

The Attorney-General for the State.

OPINION

MR. JUSTICE VanVALKENBURGH.

On the ninth day of May, A. D. 1882, George W. Irvin was indicted for the murder of one John Engle by shooting, in the county of Franklin. On the same day the prisoner was arraigned, and plead not guilty. By counsel, he then moved for a change of venue upon his own affidavit, which is as follows:

"THE STATE OF FLORIDA, vs. GEORGE W. IRVIN.

Motion.

"The defendant moves the court for a change of venue, on the following grounds, to-wit: That he does not believe that he can obtain a fair and impartial trial in the county of Franklin, on account of existing prejudice in said county against him; and furthermore, that a large portion of the citizens have formed and expressed an opinion adversely to the successful verdict for him in the said cause.

"G. W. IRVIN."

STATE OF FLORIDA,

County of Franklin.

Personally came before me, J. A. Atkins, Clerk of the Circuit Court in and for said county, George W. Irvin, who being duly sworn says that the foregoing allegations are true, to the best of his knowledge and belief.

G. W. IRVIN.

Sworn to and subscribed before me this 9th day of May, 1882. J. A. ATKINS, Clerk.

Immediately thereafter, as appears by the record, the prisoner's counsel, upon an affidavit made by the prisoner, moved for a continuance of the case to the next succeeding term of the court, which motion for a continuance was granted.

On the 3d day of October, at a term of the court held at Apalachicola, at which the prisoner was present "in his own proper person, and also by counsel," a trial was had, and the prisoner was found guilty of murder in the first degree. The court charge the jury in the following language: "If you believe from the evidence that in the county of Franklin, State of Florida, on or about the day mentioned in the indictment, but before the day mentioned in the indictment, the deceased was sitting quietly on the deck of a steamboat, unarmed, and making no hostile demonstration, and that under the circumstances, the accused, being armed with a concealed pistol, walked up to the deceased and intending to kill him, did then and there kill him, by shooting him with the pistol aforesaid, then it is your duty to find the accused guilty of murder in the first degree, unless you also believe from the evidence that the accused was at the time aforesaid so insane that he did not know that he was doing wrong. Every man is presumed to be sane and to possess a sufficient degree of responsibility for his crimes until the contrary is satisfactorily proved; and to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the accused was laboring under such defect of reason as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that he was doing wrong."

There was no exception reserved to any portion of this charge. The defendant's counsel asked the court to charge the jury, "that if they believed from the evidence that the alleged killing was justifiable to find a verdict of justifiable homicide." The court declined to charge the jury as requested, and the prisoner's counsel excepted to such ruling of the court.

After the verdict the counsel for the prisoner moved for a new trial as follows:

"And now comes the defendant, by M. C. Pickett, his attorney, and moves the court to grant him a new trial on the grounds that there were one, and perhaps more, of the jurors who gave the verdict of guilty of murder in the first degree against G. W. Irvin that had, previous to the trial in this cause, formed and expressed their opinion as to the guilt or innocence of the prisoner, and stated that they would hang him if they were on the jury; thereby meaning that they would find him guilty, besides other words of like character. And for further grounds, that a large portion of the people of this county have already expressed their opinion adversely to the acquitting of said defendant." To sustain this motion the counsel for the prisoner introduced affidavits of J. W. Ramsey, Lucretia Hathcock and Virginia McLean.

Ramsey deposed that on Tuesday, the third day of October, he was present with William C. Coburn, a juror in this case, and that Coburn did, in the streets of Apalachicola, declare that he would hang him, Irvin, every time. This was before the trial.

Lucretia Hathcock swore that on 26th September while present with Coburn, one of the jurors, in the city of Apalachicola, he said "that if he should be on the jury in said cause he would hang Irvin for the murder."

Virginia McLean swore to precisely the same facts as stated by Lucretia Hathcock.

The State's Attorney then called William Coburn, the juror, who testified that he was a juror on the trial of this cause, that he had no recollection of ever having said that defendant ought to be hung, or that he would hang him if on the jury, or to have at any time expressed an opinion as to the guilt or innocence of the defendant prior to the trial; that he was not in the city at the time of the homicide; that he had not informed himself of the circumstances of the killing, and that when he was sworn as a juror he had no existing or formed opinion as to the guilt or innocence of the accused, and was absolutely without any previously-formed opinion, and without bias or prejudice for or against the accused; that he was not sworn on his voir dire as to his qualifications as a juror.

The court then overruled the motion for a new trial, and the counsel duly excepted thereto, and brings his case into this court by writ of error. The errors assigned are as follows:

1st. Refusing to grant a change of venue.

2d. In refusing to instruct the jury as requested by prisoner's counsel.

3d. Refusing to grant a new trial upon the ground set out in the motion for the same.

4th. In charging the jury that "if they believed from the evidence that the deceased was sitting quietly on the deck of a steamer unarmed, and making no hostile demonstration, and that under these circumstances the accused, being armed with a deadly weapon, a concealed pistol, walked up to the deceased and, intending to kill him, did then and there kill him by shooting him with the pistol aforesaid, then it is your duty to find the accused guilty of murder in the first degree, unless you also believe from the evidence that the accused was at the time aforesaid so insane that he did not know that he was doing wrong."

5th. In not charging the jury in regard as to what constituted murder in both the first and second degrees.

6th. In that the record does not show affirmatively that the prisoner was personally present in court when the judgment overruling the motion for a new trial was rendered.

H. B. Brown testified: I know the defendant, and knew John Engle. I saw him when he died. Irvin shot him just about night, and he died right where he was shot. It was on board the Chattahoochee at the dock. The shooting was in Franklin county, Florida. When Irvin shot Engle, he, Engle, was in conversation with Daniel Hathcock; they were sitting on a couple of barrels. Irvin got off of a barrel four or five feet from the one Engle was on. Before Irvin got up he took his pipe out of his pocket, drawed and filled it, lit it and began to smoke. He then got up and took from out of a bundle a pistol and passed by those two men two or three times; the last time he passed by Engle he shot him, and he fell there. It was on Monday, or about the first of the week. Shot him below the eye, on the right cheek. It was a large single-barrelled horseman's pistol. Carry a ball as big as the end of middle finger. Engle was not noticing Irvin. I knew the pistol eight or ten years. It belonged to my son-in-law, and he sold it to some one at the shop. I don't know where Irvin got the pistol. Mr. Sam Ingram came down to the boat with Irvin. I think I saw them together fifteen or twenty minutes before the shooting. Irvin said nothing at the time of the shooting. Afterwards he walked ashore and dropped the pistol. I was in town the Friday before. Engle and Irvin were in town that day, so was Daniel Hathcock. On Friday night before I heard Hathcock and Irvin in conversation. Irvin was hunting Engle; he spoke to Hatheock and said I have been hunting that boat for Engle; I hear he is in jail. Irvin lived on Owl Creek, on Dyas place. Engle lived about a quarter or half mile from same. Irvin did not go home between Friday and Monday nights. Engle went home Friday and came back Monday. I did not see the pistol on Friday.

On his re-examination he said, when Irvin took out his pistol he put it under his arm secreted from view. He passed to and from two or three times; about five minutes from time he took out the pistol until he shot. There were no weapons about Engle, except his small barlow knife. He then identified the pistol. Irvin carried the pistol under his arm, his arms folded. I know it is the same pistol.

On his cross-examination the witness testified: Irvin and Engle had some little quarrels. They had so many I can hardly remember all. At that time there was something between them about Mr Irvin's wife being dead. I never heard Engle make any threats against Irvin. There was some rumor between them about Irvin's...