Keigans v. State

• Decision Date: 03 August 1906
• Citation: 52 Fla. 57,41 So. 886
• Parties: KEIGANS v. STATE.
• Court: Florida Supreme Court

41 So. 886

52 Fla. 57

KEIGANS v. STATE.

Florida Supreme Court, Division B.

August 3, 1906

Error to Circuit Court, Pasco County; Joseph B. Wall, Judge.

Dow B Keigans was convicted of murder and brings error.Reversed.

Syllabus by the Court

SYLLABUS

The trial judge should not single out and give undue prominence to the testimony of the defendant and the fact of his interest in the result of the trial by instructing the jury to remember 'the interest he necessarily must have in the result of the trial,' in considering the testimony of the defendant who has testified as a witness in his own behalf.

In a trial for murder in the first degree the trial judge gave the following charge to the jury.'The premeditated design to kill may have existed in the mind of the slayer for a month a week, a day, or an hour, or may have been formed a monent before the fatal shot was fired.If you believe from the evidence that the defendant shot and killed Hansel Norman as charged in the indictment, that he killed him without legal justification or excuse, and that at the time he fired the shot which killed Hansel Norman he intended to kill him, it would make no difference at what precise time he made up his mind to take Norman's life.If, when he fired the pistol he intended to kill, he is guilty of murder in the first degree, even although he may not have had in his mind any such intention at the time he drew his pistol.'

In the opinion of Taylor, P.J., and Hocker and Parkhill, JJ., this charge is erroneous and misleading in definition of murder in the first degree.Shackleford, C.J., and Cockrell and Whitfield, JJ., not concurring.The question presented by this charge is, therefore, not decided.

Under Rev. St. s 2383, it is proper for the trial judge to instruct the jury as to the form of the verdict in case of conviction directing them to specify in the verdict the degree of unlawful homicide of which they may find the defendant to be guilty.

COUNSEL J. A. Hendly, G. W. Dayton, and Samuel Fletcher, for plaintiff in error.

W. H. Ellis, Atty. Gen., H. S. Phillips, and Thomas Palmer, for the state.

OPINION

PARKHILL J.

The plaintiff in error was indicted in the circuit court of Pasco county for the murder of Hansel Norman, was tried and convicted of murder in the first degree, and from the sentence of death imposed by the court seeks relief here by writ of error.

I.The following charge, given by the court to the jury and duly excepted to, is assigned as error: 'The jury are the sole judges of the evidence and of the weight and sufficiency of the evidence.It is your peculiar province to determine which of the witnesses or what portions of their testimony you will believe, and which, if any, you will not believe.If there are conflicts in the testimony, you should reconcile them, if in your power to do so.But, if you find yourselves unable to reconcile such conflicts, then it will become your duty to entirely discard from consideration such portions of the testimony as you may not believe, and to base your verdict solely upon the part of it which you believe to be the truth, bearing in mind the interest in the result of the trial, if any, which may induce any given witness to falsify or color his evidence.You should treat the testimony of the defendant as you do that of any other witness, and that is, give it just such weight as you think it entitled to, remembering the interest he necessarily must have in the result of the trial.'

The last clause of the last sentence of this charge is objectionable because it singles out and gives undue prominence to the testimony of the defendant, and the fact of his interest in the result of the trial.It is calculated to unduly impress the minds of the jury and prejudice the defendant.The direction here is mandatory that the jury remember the interest the defendant necessarily must have in the result of the trial.

Immediately preceding the sentence under consideration the court instructed the jury in weighing the testimony of witnesses to bear in mind 'the interest in the result of the trial, if any, which may induce any given witness to falsify or color his evidence.'The juxtaposition of the sentences and the difference in their phraseology would naturally lead the jury to understand that the one clause was mandatory, and the other only permissive; that, so far as the defendant was concerned, he necessarily must have an interest in the result of the trial, which the jury must remember in considering his testimony; and that, in considering the testimony of the other witnesses in the case the jury will determine whether a witness has an interest in the result of the trial, and, if so, to bear in mind the interest which may induce him to falsify or color his evidence.This charge does not place the defendant in precisely the same attitude with reference to the case as other witnesses are placed, although the court told the jury that they should treat the testimony of the defendant as they would that of any other witness.It is doubtless true that the defendant necessarily must have an interest in the result of the trial; but, as was said in Hicks v. United States,150 U.S. 442, 14 S.Ct. 144, 37 L.Ed. 1137, 'it must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf.Such a privilege would be a vain one, if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability.'

Chapter 4400, p. 162, Acts of 1895, makes a defendant at his option a competent witness.It confers upon him a substantial right and benefit.Under its provisions, he has the right to submit his testimony to the jury and have them judge of his credibility.

Section 1088, Rev. St. 1892, provides that the judge presiding shall charge the jury only upon the law of the case.To tell the jury about the interest a man necessarily must have when he is on trial for his life neutralizes or impairs the legislative act that makes him a witness.Green v. State,40 Fla. 191, text 199, 23 So. 851;Lang v. State,42 Fla. 595, text 601, 28 So. 856;Hampton v. State(Fla.)39 So. 421;Buckley v. State,62 Miss. 705;Woods v. State,67 Miss. 575, 7 So. 495;Muely v. State,31 Tex. Cr. R. 155, text 168, 169, 18 S.W. 411, 19 S.W. 915;Harrell v. State,37 Tex. Cr. R. 612, 40 S.W. 799;Purdy v. People,140 Ill. 46, 29 N.E. 700.See, also, Barber v. State,13 Fla. 675, text 681;Miller v. State,15 Fla. 577, text 584;Andrews v. State,21 Fla. 598, text 610.A contrary doctrine is held by the courts in some states of our Union, under statutes materially different from the statutes of this state on the subject.Muely v. State, supra.

II.It is assigned as error that the court erred in charging the jury as follows: '(4a) The premeditated design to kill may have existed in the mind of the slayer for a month, a week, a day, or an hour, or may have been formed a moment before the fatal shot was fired.If you believe from the evidence that the defendant shot and killed Hansel Norman as charged in the indictment, that he killed him without legal justification or excuse, and that at the time he fired the shot which killed Hansel Norman he intended to kill him, it would make no difference at what precise time he made up his mind to take Norman's life.If, when he fired the pistol, he intended to kill, he is guilty of murder in the first degree, even although he may not have had in his mind any such intention at the time he drew his pistol.'

This charge is erroneous and misleading.We do not think it conforms to the definition of murder in the first degree under our statute.'The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed, or any human being,' is declared, by section 2380, Rev. St. 1892, to be murber in the first degree.Manslaughter is 'the killing of a human being by the act, procurement, or culpable negligence of another in cases where such killing shall not be justifiable or excusable, nor murder according to the provisions of this article.'Section 2384, Rev. St. of 1892.

In manslaughter, there may be an intent to kill existing in the mind of the slayer at the time the fatal shot is fired.In order to constitute murder in the first degree, there must be not only an intention to kill on the part of the slayer, but there must be a premeditated design to kill or effect death also.This charge does not distinguish in this respect between manslaughter and murder in the first degree.It permits the jury to find the defendant guilty of murder in the first degree if, when he fired the fatal shot, he intended to kill the deceased, without requiring the defendant to have formed and acted in pursuance of such a design as the law would know as premeditated.While the first sentence of the charge states that 'the premeditated design to kill may have existed in the mind of the slayer for a month, a week, a day, or an hour, or may have been formed a moment before the fatal shot was fired,' without saying that the action of the slayer must be the result of such premeditation, it goes a step further in whittling away and shortening the time within which the defendant must have formed a premeditated design to kill the deceased; and by saying that it would make no diffierence at what precise time he made up his mind to take Norman's life, if at the time the fired the fatal shot he intended to kill him he is guilty of murder in the first degree, the charge does away entirely with the...