Kelly v. State

• Decision Date: 14 April 1897
• Citation: 22 So. 303,39 Fla. 122
• Parties: KELLY v. STATE.
• Court: Florida Supreme Court

22 So. 303

39 Fla. 122

KELLY v. STATE.

Florida Supreme Court

April 14, 1897

Error to circuit court, Duval county; R. M. Call, Judge.

James M. Kelly was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where the defendant in a criminal case moves for a new trial upon the ground that a juror who tried him was biased against him, and entertained a previously formed opinion of defendant's guilt when taken upon the panel, it must be shown by affidavit that the defendant and his counsel did not know these facts at the time the juror was impaneled.

2. A juror cannot impeach his own verdict by testifying as to the motives and influences by which the deliberations of the jury were governed, nor that he entertained a previously formed opinion at the time of the trial. Neither can his declarations, made after the trial, impeaching his verdict be proven by a third person.

3. The incompetency that will authorize the court below to interfere after a juror has been sworn must be of such a character as would defeat a fair and impartial trial.

4. The premiditated design which is essential to make out a case of murder in the first degree is a question of fact for the jury to determine from the evidence.

5. This court will not reverse the decision of a trial court in refusing a new trial on the ground that the verdict is contrary to the evidence, unless the preponderance or want of evidence is such that the verdict must have been produced by considerations other than a due respect to the evidence.

COUNSEL

A. M. Michelson, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State. The plaintiff in error was convicted of murder at the spring term, 1896, circuit court of Duval county, and sentenced to death, from which this writ of error was sued out.

Hugh McFarland testified that he was a brother-in-law of John B Tallant, the deceased that witness came to Jacksonville December 29, 1895, and found Tallant at St. Luke's Hospital, where witness remained with him continuously until January 25, 1896, when with the permission of the attending physicians, he carried Tallant to St. Louis, Mo., where he died on January 29, 1896. When witness came to Jacksonville, Tallant was suffering from bullet wounds in the back and leg; Dr. Miller told witness that it would be safe for him to remove Tallant; that his condition was hopeless, and death but a question of time, and that the trip would not affect him. Tallant was carried to St. Louis, so that he could die among his people, as they were too poor to come to Jacksonville.

Dr. Miller testified that he and Dr. Romero attended Tallant while at St. Luke's Hospital, where he was brought on the evening of December 25, 1895. Tallant was shot from a 38-caliber pistol, the bullet striking on the right of the spinal column, and had either shattered or severed the spinal cord. From the waist down Tallant was totally paralyzed, unable to have an action either from the bowels or bladder, in which condition he remained continually until he left for St. Louis. Witness considered the wound absolutely fatal, and Tallant's death a question of time only. Witness gave Mr. McFarland permission to move Tallant because he considered that the trip to St. Louis could have no possible effect on the ultimate result of the wound, as Tallant was bound to die from it. Dr. Romero, Dr. Fernandez, and witness held a consultation as to the advisability of performing an operation, and all decided it would be useless. Tallant was also suffering from a bullet wound in the leg, which ranged upward, as if he was down when shot, and the person who shot him stood above him.

Dr. Romero testified that he was among the first to reach Tallant after the shooting, found him in Bettelini's Bicycle Agency, on Bridge street, Jacksonville, lying just inside the door, with his feet almost at the threshold, and his head towards the back of the store. Tallant was shot in the back, and by probing he found that the spinal cord was either partially or totally severed; also found a wound in the leg, ranging upward, as if the leg was up when shot; and, in the opinion of witness, Tallant was down when shot in the leg. Witness found a knife containing one broken blade in Tallant's pocket. Tallant was sent to St. Luke's Hospital. This occurred on the evening of December 25, 1895. Tallant was totally paralyzed from his waist down, and remained in that condition constantly until sent to St. Louis. In witness' opinion the wound in the back was absolutely fatal, and death its inevitable consequence. Witness, Dr. Miller, and Dr. Fernandez made a thorough examination of the wound, but decided that an operation would be useless. Witness knew of no case of recovery from wounds of like character. Witness considered that the trip to St. Louis had no effect whatever in hastening death. In witness' opinion, Tallant was shot in the back first, and afterwards in the leg. The wound in the leg could, from the range of the bullet, have been made by a man who was below Tallant and shot up, or it could have been made with like range of bullet if Tallant had whirled when the shot was fired.

Dr. Fernandez testified that he was a physician and surgeon; that he was called in by Drs. Miller and Romero a few days after Tallant was shot, to examine the wound in the back, to determine whether it was advisable to perform an operation; witness thoroughly probed the wound, and found that the spinal cord was severed; that death was inevitable, and the operation useless; Tallant was totally paralyzed from his waist down; his death was a question of time; Tallant might have lived a month, three months, six months, a year, or indefinitely, but sooner or later that wound would have killed him; that in his opinion the trip to St. Louis had no effect in hastening Tallant's death.

George Adams testified that he witnessed the shooting of John B. Tallant, which occurred about 6 o'clock on December 25, 1895. It was just getting dark. Witness was inside Bettelini's Cycle Agency, on Bridge street, Jacksonville, Duval county, Fla. Witness' attention was attracted by two men wrestling on the sidewalk in front of the front door of the agency. Witness ran to the door, and saw them as they fell on the sidewalk, Tallant on top, Kelly underneath. Some men pulled them apart, and as they got up Kelly pulled out his pistol, and struck Tallant with it on the head. Tallant struck Kelly with his fist, and Kelly staggered on the sidewalk, and, after steadying himself, fired at Tallant, but witness does not think this shot hit any one. Tallant then started towards the door of the bicycle store, and as he reached it, with his back towards Kelly, the latter fired again, and Tallant fell inside the store with his feet just clearing the threshold. Then Kelly stepped to the door, put his pistol just inside the door, bent over Tallant, and fired three more times. Witness saw Tallant's hands throughout the difficulty, and he had nothing in them. Witness saw no knife except the one found in Tallant's pocket, and he did not move Tallant until Dr. Romero came. There was an electric light in the bicycle agency.

M. F. Brunson testified that he was standing across the street from Bettelini's bicycle store on the evening of December 25, 1895; that he saw two men apparently wrestling, fall on the sidewalk, Kelly underneath Tallant. Some men pulled them apart, and as they got up Kelly pulled out a pistol, and struck Tallant on the side of the head. Tallant struck Kelly in the face with his fist hard enough to knock him off the sidewalk, and as Kelly got up he fired twice, when Tallant fell at the door of the store. Kelly then ran forward, and fired three more times. Witness could see Tallant's hands. He had nothing in them. Jack Rowan testified that he was present, standing on the sidewalk, at the time of the difficulty; that Tallant was standing by the post, with his hands by his side. Tallant had no knife. Tallant and Kelly had some words, and they clinched, and fell on the sidewalk, with Tallant on top. Some one parted them, and as they got up Kelly pulled out a pistol, and struck Tallant on the head with it. Tallant struck Kelly with his fist hard enough to shove him off the sidewalk; and as Kelly got up he fired at Tallant, who was walking away from the door of Bettelini's Bicycle Agency. At the second shot, Tallant fell, and Kelly, rushing to him, fired three more times.

The defendant testified that he was a policeman of the city of Jacksonville on December 25, 1895; that under the rules of the police department then in force a policeman was always on duty whether in dress or undress uniform; that it was the duty of a policeman to prevent violations of city ordinances when off as well as when on active duty. The rule of the police department referred to by the defendant was read in evidence as follows: 'Each member of the force shall be deemed to be always on duty, subject to such relief therefrom as shall be allowed by proper authority, and the same responsibility as to suppression of disturbances and the arrest of offenders rest upon them when not in uniform as when in uniform on post of duty.' Defendant further testified that about dark on December 25, 1895, he was walking north on Bridge street. Two ladies were walking behind him. The sidewalk in front was blockaded by Tallant and others, whom he afterwards found out were Tallant's friends. It was impossible to pass, and defendant said to them, 'Clear the sidewalk, gentlemen, and let the ladies pass.' Tallant and his friends laughed, and Tallant said, 'Ladies, hell,' but none of them moved. Defendant started to lay his hand on Tallant's shoulder to arrest him for obstructing the sidewalk, when Tallant...