Kelly v. State

• Decision Date: 24 January 1941
• Citation: 199 So. 764,145 Fla. 491
• Parties: KELLY v. STATE.
• Court: Florida Supreme Court

199 So. 764

145 Fla. 491

KELLY v. STATE.

Florida Supreme Court, Division A.

January 24, 1941

Rehearing Denied Feb. 4, 1941.

C. D Kelly was convicted of murder in the second degree, and he appeals.

Affirmed. Appeal from Circuit Court, Hillsborough County Harry N. Sandler, judge.

COUNSEL

R. G Tittsworth, of Tampa, for appellant.

George Couper Gibbs, Atty. Gen., and William Fisher, Jr., Asst. Atty. Gen., for appellee.

OPINION

BUFORD Justice.

The appeal in this case brings for review judgment of conviction of murder in the second degree under indictment charging murder in the first degree.

Appellant presents three questions for our consideration as follows:

'First. Does the evidence sustain the verdict?

'Second. In trial for murder by shooting, which occurred in the yard of plaintiff in error and while plaintiff in error was standing right at his front porch, and deceased was within seven or eight feet of plaintiff in error and the defense was self-defense, is plaintiff in error entitled to have a charge given to the jury duly requested by him upon the law that he is not required to retreat in order to avoid the difficulty but may stand his ground and meet any attack made upon him in such a way and with such force as under all the circumstances he at the moment has reason to believe and does believe is necessary to save his life or to protect himself from great bodily harm?

'Third. When the theory of plaintiff in error of his defense in a murder prosecution supported by evidence, is that he was attacked by the deceased under such circumstances that he had the right in defense of himself to shoot the deceased, and that the case of said attack upon plaintiff in error was the anger of the deceased growing out of the deceased's belief that plaintiff in error had taken a woman, Eva Ellarbee, with whom deceased had previously lived, with him on an overnight trip from Tampa to Lakeland, Florida, is it competent and admissible evidence for the State Attorney on cross examination of said Eva Ellarbee as a defense witness, to require said witness to testify whether she is pregnant and, if so, by whom, same not being in cross examination of anything brought out on the direct examination?'

The record has been examined and the evidence is amply sufficient to support the verdict and judgment.

As to the second question, the record shows that the altercation occurred near the house occupied by the appellant. That house and other houses in the same locality were unenclosed by any fence or other enclosure which would mark the curtilage. In the general charge the court had not charged the jury that it was the duty of the defendant to use every reasonable neans consistent with his safety to avoid the difficulty.

The instruction requested and refused, the refusal of which the appellant complains, was as follows:

'The Court instructs the jury that if, while one is lawfully on his own dwelling house premises--which includes that portion of the lot on which the building is located used by him as a yard either exclusively or in common with any other person or persons--another advances in a threatening manner and under such circumstances that the former believes and has reason to believe that he is in imminent danger of losing his life or suffering great bodily harm, he is not obliged to retreat but may stand his ground and meet any attack made upon him in such a way and with such force as under all the circumstances he at the moment has...