Johnson v. State

• Decision Date: 20 March 1907
• Citation: 43 So. 779,53 Fla. 45
• Parties: JOHNSON v. STATE.
• Court: Florida Supreme Court

43 So. 779

53 Fla. 45

JOHNSON v. STATE.

Florida Supreme Court, Division A.

March 20, 1907

Error to Circuit Court, Taylor County; Bascom H. Palmer, Judge.

J. K Johnson was convicted of an assault with intent to commit manslaughter, and brings error. Reversed, and new trial granted.

Parkhill J., dissenting in part.

Syllabus by the Court

SYLLABUS

In an indictment for assault with intent to commit murder, the words 'unlawfully and from a premeditated design to effect the death of A.' sufficiently allege the statutory 'intent' to commit the felony of murder.

To constitute the crime of assault with intent to commit manslaughter, the assault must be made with intent to commit manslaughter upon the person of the assaulted person. When the whole trend of the testimony is to show that such intent if any, was directed against a third person not named in the indictment, the conviction of an assault with intent to commit manslaughter will be set aside.

Where the evidence clearly justifies the charge, there is a duty resting upon trial courts to charge mero motu upon the offense of aggravated assault, even though no correct instruction thereon is requested.

In a charge upon self-defense, the expression, 'when a man is out of danger, he should remain out of danger,' disapproved.

COUNSEL Chas. E. Davis, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

COCKRELL, J.

In April, 1905, J. K. Johnson was indicted in the circuit court for Taylor county for an assault with a deadly weapon with intent to murder one David Padgett. He was convicted of an assault with intent to commit manslaughter, and sentenced to pay a fine of $500 and the costs of prosecution, and in default thereof to be confined in the state prison for a period of five years.

A motion to quash the indictment was overruled, and is the basis for the first assignment of error. The argument is that the words 'unlawfully and from a premeditated design to effect the death of the said David Padgett' are not sufficiently broad and comprehensive to cover the statutory intent to commit the felony of murder, and Ruis v State, 43 Fla. 186, 30 So. 802, is cited in support. The position is untenable. See Barber v. State (decided at the last term of this court) 42 So. 86.

The testimony is short, and not altogether clear in some aspects. It appears that Johnson had unsuccessfully contested a homestead claim in which David Padgett, John Ellison, and Wiley Ellison were interested. Johnson, being cast in the suit, was settling the costs with the clerk, when Padgett invited him outside the courthouse; the two Ellisons following. When outside John Ellison asked him why he tried to contest his (E.'s) homestead, and either Padgett or Ellison cursed him. Johnson said he would not fight three men, to which Ellison replied that he would fight any way he wanted to. John Ellison 'followed him a piece, and threw his hat at him, and told him to 'go, you damned old coward." Johnson went to his home, procured a rifle, and, returning towards the courthouse, saw Padgett, the Ellisons, and the clerk standing in front of the steps, and, waving to the clerk to stand aside, shot 'in the general direction of the three.' Padgett and Wiley Ellison ran up the steps as Johnson fired, but John Ellison jumped behind a post near the steps. The first shot went through the corner of the courthouse, and the second shot hit the post behind which John Ellison was standing.

The only witness for the defense was the defendant himself, who testified he shot to frighten, thinking they would run, and did not shoot to kill.

To constitute the crime of which the plaintiff in error was convicted, there must concur with the use of a deadly weapon, to bring it out of the category of an aggravated assault, which is a misdemeanor, the further element of an intent to commit manslaughter upon the person of the assaulted party. Williams v. State, 41 Fla. 295, text 302, 26 So. 184. Were the jury, on the facts, justified in finding that the accused was guilty of an assault with intent to kill Padgett? The whole trend of the evidence was rather that, if a homicidal intent existed, it was directed against John Ellison, who was the more aggressive mover in the original controversy, and the shot struck the post behind which he stood, and not the steps or that part of the courthouse where Padgett was. Padgett himself says he does not know in what direction the shots were fired, and the nearest testimony is that of the clerk, who says that Johnson fired in the general direction of the three. Had the court submitted squarely to the jury that, to convict of this crime, they must be satisfied beyond a reasonable doubt that Johnson, in making the assault, intended to kill Padgett, we would have greater hesitancy in interfering with the jury's verdict, approved as it was by the trial judge; but the charge given upon this offense permitted the jury to find the accused guilty if they believed the homicidal intent was directed against Ellison, and as copied into the transcript before us is contradictory and misleading.

Further the court did not charge as to an aggravated assault, a crime within the issues and the proof. The instruction requested by the defense was technically faulty, and was properly refused; but there...