Killins v. State

• Decision Date: 18 July 1891
• Citation: 9 So. 711,28 Fla. 313
• Parties: KILLINS v. STATE.
• Court: Florida Supreme Court

9 So. 711

28 Fla. 313

KILLINS v. STATE.

Florida Supreme Court

July 18, 1891

Error to circuit court, Orange county; JOHN D. BROOME, Judge.

Syllabus by the Court

SYLLABUS

1. In a trial for murder, where the defendant, immediately after slaying the deceased, proceeded to shoot at, chase, threaten and endeavor to kill the mother of the deceased, who was present and witnessed the killing, such subsequent threats and acts of the defendant are admissible in evidence as part of the res gestoe, and to show the animus of the defendant.

2. In the argument of any cause to a jury, it is improper for counsel to state facts that are not pertinent to the case on trial, and as to which there is no evidence; and, upon objection being made thereto, it is proper for the court to restrict the argument to the evidence in the cause.

3. Where the court has already fully instructed the jury upon the law of the case, it is not error to refuse a request to give other charges, couched in different language, but that are in substance nothing more than a repetition of those already given.

COUNSEL J. M. Cheney, for plaintiff in error.

W. B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR, J.

On the 29th of October, A. D. 1890, Daniel Killins, alias Daniel Williams, was indicted in the circuit court of Orange county seventh judicial circuit, for the murder on the 1st of February, A. D. 1888, of one Margaret Welton; the weapon used being a pistol. On the 16th of April, 1891, the defendant was put on trial, and was convicted of murder in the first degree, as charged in the indictment. Motion for a new trial was made upon the following grounds: '(1) Because the verdict was contrary to the evidence; (2) because the verdict was contrary to the law; (3) because the verdict was contrary to the law and the evidence; (4) the court erred in not giving the first charge asked for by defendant; (5) the court erred in not giving the second charge asked for by the defendant; (6) the court erred in not giving the third charge asked for by the defendant; (7) the court erred in refusing to give the eleventh charge prayed by the defendant;' which motion was denied, and the defendant sentenced to die from this judgment, and sentence, the defendant appeals to this court.

The errors assigned are as follows: '(1) Court erred in allowing the witness William Ray to testify contrary to the objections of defendant's counsel; (2) the court erred in allowing the witness Nancy Powell to testify contrary to the objections of defendant's counsel; (3) in restricting argument of counsel J. M. Cheney; (4) in refusing to give the first charge prayed by the defendant; (5) in refusing to give the second charge prayed by the defendant (6) in refusing to give the third charge prayed by the defendant; (7) in refusing to give the eleventh charge prayed by defendant; (8) in refusing to grant a new trial.'

The errors assigned necessitate some discussion of the evidence. Nancy Powell, for the state, testified that she knew the prisoner, and had known him intimately since 1886; that she came to Florida from Georgia with the defendant in 1885; that the deceased, Margaret Welton, was her daughter; that Margaret Welton was then in her grave; that the prisoner put her there; that she and the prisoner were living together, though she was not his wife; that she and the defendant and her daughter, the deceased, were at the time camping out in a tent at Oakland, in Orange county, Fla. The defendant's occupation was that of getting out railroad ties. That on one evening in January, 1887, one Jake Allison, who also came with her from Georgia, came to her tent, and asked her to keep his coat there for him. She told him to put it in the tent, which he did. The defendant concluded not to go out that evening to his work of cutting ties, but stayed in the tent. Feeling tired, she went in the tent, and laid down. Not thinking of it, she did not look in Jake Allison's coat pockets for any pistol. After getting his supper ready, she sent for the defendant to come to supper. 'He did not come at once, but came after a while, and said, 'Nancy, where is that whisky I told you to get for me this evening?' I told him to look in that box, and get it. He came in there cursing, saying, 'G---d d---d if he was not going to kill two niggers that night.' I then thought of my money, as I had one of those fifty-cent baking-power cans full of silver dollars in my trunk. He came in and threatened and cursed me, and kicked me in the side as hard as he could. It was ever so long before I could straighten, and when I did I hallooed. My daughter ran to me, and said, 'What is the matter?' I paid no attention to her, but said to him, 'What in the name of the Lord did you kick me for?' He replied, 'What have you been saying about me?' I told him I had said nothing about him. He then cursed me again. My daughter then spoke, and said: 'My mother was no bitch; that it was no more than she would be if she did what he wanted for him.' I did not know he had the pistol. She jumped from against the tree, and whirled, and he shot. I think he struck her in the back. It was so quick, I could not tell exactly where she was shot. I threw up my hand, and said: 'Don't kill my daughter; if you kill my daughter, kill me too;' and then he turned on me, and I broke and run. When I went I saw that he was intending to kill me too. I whirled, and he shot me right in the small of the back. I said, 'Lord, man, are you going to kill me too?' I ran about two hundred yards or more, to where there was a light. He followed me over there. I looked back, and sawhim coming. I said, 'Don't kill me.' He said: 'I am going to shoot you like I want to shoot you; I want to shoot the heart out of you.' Then a man walked up and said: 'Dan, give me my pistol. What in the name of God are you studying about, shooting around here?' He said: 'Jake, I have done wrong; I have done wrong.' My daughter stayed only three weeks after I brought her from Georgia. She did not live quite three weeks. I am certain the prisoner is the man. Oakland is in Orange county, state of Florida. I did not see Margaret Welton after she was dead, because I was nearly dead myself. The last I saw of her was when he shot her. I was in the tent when the shooting took place. I was standing in the tent looking at him when the shooting took place. My daughter was standing thirty or forty or more feet off, by a pine tree. The prisoner had placed himself on a cross-tie about ten steps from her when he shot her. The shooting did not take place in the tent. He walked out after kicking me, and placed himself on a tie. The coat in my tent was Jake Allison's. There was a pistol in the pocket of Jake Allison's coat. I was taking care of it for him. The pistol was a 'thirty-two.' Jake brought it down from Georgia, when he came down with me. Didn't know how old she was,--20 or 30, along about there. My daughter was going on seventeen years old. There had never been any trouble between defendant and me about my daughter. Have had a heap of trouble with defendant. Had trouble with him all the time. I was not married to him, but he had me in such a way here I was afraid all the time. I went back to Georgia in 1886, and came back here because he told me if I did not come back he would kill me. The defendant was very jealous of me, and would jump on me if he saw a man around there, or if he saw tracks around the tent. It was Jake Allison's pistol that he did the shooting with.'

Joe Hollingsworth, for the state, testified that he knew the prisoner, and pointed him out. Had known him four or five years. He also knew the deceased, Margaret Welton. That she was dead. 'I saw her when she was shot. This man [indicating prisoner] shot her. I was sitting in front of the tent one evening about six o'clock, and Miss Smith, (she was then,) that woman that was up here, and Dan came in a few minutes afterwards, and they had a row. Margaret came down, and asked what was the matter. The old lady told her Dan had kicked her. She then said, 'The first thing you know, Dan will kill you;' and then she and Dan got to quarreling. She said, 'You are mad at me because you can't have me and my mother both.' Then Dan shot at her, and missed her, and the next shot struck her in the back. This is the man that did the shooting. Am certain of it. He shot her twice. Missed her first time. He was eight or ten feet from her when he shot her. She turned off when he shot, and told him to shoot again, and he shot, as she said, the second time, and killed her. This was in 1887 some time. Can't tell the time of the year. It was at Oakland, in Orange county, Fla. Am no relation to Nancy Powell. I was sitting about five feet from him when he shot, looking at him. The shooting took place a good while after she came down and her mother had said that Dan had kicked her. It was a good while after,--five or ten minutes or so. She and Dan were quarreling because Dan kicked her mother. Nancy was crying at the time, in the tent. Nancy was in the tent when the shooting took place, but ran out when he shot. I have not seen Dan until now, since he did the shooting.'

Aaron Kirby for the state, testified that he knew the defendant and pointed him out in court; that he had known him about six years; had worked with him cutting ties for two railroads, occupying the same camp with him; knew Margaret Welton; she is dead; saw her after she was dead at Oakland, about a mile from town. 'I saw what killed her. The question was between Dan and the girl. The girl came up there when Nancy Powell was screaming, and asked her mother what was the matter with her. On her mother telling her that Dan had kicked her, she said, 'I told you to come away from Dan.' Dan...