Kelley v. State

• Court: Florida Supreme Court
• Writing for the Court: BROWNE, C.J.
• Citation: Kelley v. State, 79 Fla. 182, 83 So. 909 (Fla. 1920)
• Decision Date: 01 March 1920
• Parties: KELLEY v. STATE.

83 So. 909

79 Fla. 182

KELLEY v. STATE.

Florida Supreme Court

March 1, 1920

Error to Circuit Court, Madison County; Mallory F. Horne, Judge.

Charles Kelley and Russell Kelley were jointly indicted and tried for murder, and Russell Kelley was acquitted, and Charles Kelley was convicted of murder in the second degree, and he brings error. Reversed.

Ellis and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Where C. and R. are jointly charged in an indictment containing two counts, C. as principal in the first degree and R. as principal in the second degree in the first count, and R. as principal in the first degree and C. as principal in the second degree in the second count, and where R. is acquitted on the ground of self-defense C. cannot be convicted as principal in the second degree.

The charge, 'Before the defendant Russell Kelley can be convicted of any crime, you, as the jury trying this case must find from the evidence that he acted of his own volition, and not by direction and because of a fear of his father,' 'An unlawful act committed by a child in the presence of his father, at his direction, because of the criminal intent of the father, and not because of the wrong of the child, is the crime of the father, and not of the child,' is erroneous, where the testimony shows the son to be over 17 years of age, and there is nothing in the testimony to indicate that he was not in full possession of his mental and bodily faculties.

Where a child commits an unlawful act in the presence of his father and at his direction, and because of the criminal intent of the father, it must appear from the testimony that the child was of immature years or mind, and entirely under the domination, direction, and control of the father, before the crime becomes that of the father, and not of the child.

COUNSEL Charles E. Davis and J. R. Kelly, both of Madison, for plaintiff in error.

Van C Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty Gen., for the State.

OPINION

BROWNE C.J.

Charles Kelley and Russell Kelley, his 17 year old son, were jointly indicted in the circuit court of Madison county for the murder of one Andrew Register, in an indictment containing two counts. The first charged Charles Kelley as principal in the first degree and Russell Kelley as principal in the second degree, and the second count charged Russell Kelley as principal in the first degree and Charles Kelley as principal in the second degree.

They were tried jointly. Russell Kelley was acquitted, and Charles Kelley convicted of murder in the second degree.

From the view that we take of this case we need not refer to what transpired on the night before the homicide.

On the morning of the killing Charles and Russell Kelley drove up to the gate of Mrs. Lewis Fox's home, where Register, his brother-in-law, was visiting. There seems to have been bad feeling on the part of Register of some years' standing toward Charles Kelley, of which Kelley apparently had no knowledge until the night before.

When he drove up, on the morning of the homicide, he was met by Mr. or Mrs. Fox, or both of them, who say they urged him to go away, but, instead of doing so, he asked Mrs. Fox to tell Register to come out. Mrs. Fox says she went in the house and told her brother not to go out there, but that Charles Kelley called him, and he went out. They walked down the road some 30 or 40 yards, when, according to Fox's testimony, Kelley called Register a God damn liar. Fox does not say who struck the first blow, but says 'they went together.' Both the Kelleys testified that Charles asked Register what he was mad about, and that Register replied that he knew what he was mad about, and that then Charles Kelley said, 'If I have done anything, I am willing to make any apology that I can,' to this Register replied, 'I don't want any of your damn apologies.' There was some further conversation, which Russell did not hear until Register said, 'Don't you dispute it.' To which Charles Kelley replied, 'Not disputing your wife's word at all, but if any one else said that it is a lie,' and then Register struck him, and they clinched and fell to the ground, with Charles Kelley on top, striking Register with his fist. Charles Kelley's testimony as to what occurred between him and Register is to the same effect as that of his son, but he further testifies that Register charged him with having perpetrated a dastardly act on his sick wife, and it was then that he said:

"Not disputing your wife's word, but if any one else tells that on me it is a lie.' With that he hit me; hit me over the eye. Then me and him went together.'

They were separated, and Register walked back to the gate and through the yard and into the house, and Charles Kelley walked back to his buggy.

The affray was over. Register was safely within the precincts of the house. Neither of the Kelleys was attempting to follow him. The undisputed testimony shows that Register was very deliberate in getting his gun and going back to engage in another affray; went into the front room, opened a door and went into a shed room, from there went into the kitchen and came back through the house with his gun, and went out, advancing towards Kelley. The testimony again differs as to who was the aggressor in this second affray. The witnesses for the state say that Charles Kelley attempted to shoot first, but his gun snapped, and that Kelley and Register shot about the same time. The Kelleys say that Register shot first, wounding Charles Kelley in the face, and then, as Charles Kelley threw up his gun, he was shot in the hand by Register, and his gun discharged in the air. He thereupon handed the gun to his son Russell Kelley, and Register at once shot at Russell, who returned the fire. Russell Kelley's second shot struck Register, causing him to fall to the ground. From the effects of this wound he died.

The testimony points to Russell Kelley as the one who fired the fatal shot. Lewis Fox says:

'The last shot that was made, the boy shot Register down in the yard.' 'The last shot the boy fired struck Register.'

Mrs. Register, the wife of the deceased, says:

'It was the last shot that hit my husband.'

This shot was fired by Russell Kelley. Russell Kelley says that he shot Register twice, and when he shot the last time he saw his gun fall.

When Lewis Fox and Mrs. Register first testified, they stated positively that it was the last shot fired by Russell...