King v. State

• Decision Date: 05 November 1907
• Citation: 44 So. 941,54 Fla. 47
• Parties: KING v. STATE.
• Court: Florida Supreme Court

44 So. 941

54 Fla. 47

KING v. STATE.

Florida Supreme Court, Division B.

November 5, 1907

Error to Circuit Court, Jackson County; J. Emmet Wolfe, Judge.

Harrison King was convicted of manslaughter in the first degree, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In a prosecution for murder, an instruction asserting the proposition that, in order to justify a killing under a claim of self-defense, the slayer must have resorted to all reasonable means at his command consistent with his own safety to avoid the necessity of taking human life, is not erroneous, because not modified so as to bring or limit such means to the knowledge of the defendant, especially in view of other instructions conveying this meaning.

It is proper for the court to refuse to give an instruction substantially covered by other instructions already given.

A necessity brought about by a party who acts under its compulsion cannot be relied upon to justify his conduct. The aggressor in a personal difficulty, and not reasonably free from fault, cannot acquit himself of liability for its consequences on the ground of self-defense, unless, after having begun the difficulty, he in good faith declines the combat and his adversary has become the aggressor.

Evidence examined, and found sufficient to show that the defendant was the aggressor, and not reasonably free from fault, and that he was not justified in taking the life of the deceased.

COUNSEL

C. L. Wilson and Price & Watson, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

PARKHILL J.

The plaintiff in error was indicted in the circuit court for Jackson county for the crime of murder in the first degree. He was convicted of manslaughter and sentenced to a term of 10 years in the state prison. From this judgment and sentence, he seeks relief here by writ of error.

The first assignment of error questions the correctness of the following instruction given by the court to the jury, at the request of the state: 'In order to justify a killing under a claim of self-defense, the slayer must be reasonably free from fault in bringing on the difficulty. He must not have been the intentional aggressor in bringing on the difficulty, and he must have resorted to all reasonabel means at his command, consistent with his own safety, to avoid the necessity of taking human life. If the defendant was the intentional aggressor, or if the defendant was not reasonably free from fault in bringing on the difficulty, or if there were any other reasonable means at defendant's command, consistent with his own safety, to which the defendant could have resorted instead of killing the deceased, if he did kill him, then he could not justify his act on the ground of self-defense, and you should return a verdict of guilty as to some degree of unlawful homicide.'

In Peadon v. State, 46 Fla. 124, text 135, 35 So. 204, 208 the court said it was not error to add to a charge on self-defense the following proviso: 'Provided Peadon was not the aggressor in bringing on the difficulty, and used all reasonable means in his power consistent with his own safety to avoid the danger, and to avert the necessity of taking Mercer's life, and provided he did not take Mercer's life after all real or apparent necessity for doing so had ceased.' The expression, 'means at his command,' used in the charge objected to, is equivalent to the expression 'means in his power,' used in the charge in the Peadon Case. See, also, Stafford v. State, 50 Fla. 134, 39 So. 106; Snelling v. State, 49 Fla. 34 37 So. 917; Danford v. State (Fla.) 43 So. 593.

It is urged here that this charge is objectionable because 'it makes it imperative upon the defendant that, before he could justify upon the grounds of self-defense, if he, consistent with his own safety, could have fled from his adversary, and thereby avoided the necessity of killing Davis, it was his duty to do so; and, if he did not do so, he would be guilty of some degree of unlawful homicide.' This objection is removed by a charge given by the court at the request of defendant as follows: 'A defendant reasonably free from fault is under no duty to retreat from an assailant, where he reasonably believes that to retreat would increase his peril.'

It is said the charge is objectionable for the reason that the part of the charge which states that the defendant could not justify, unless he has resorted to all reasonable means at his command, is not modified so as to bring or limit such means to the knowledge of the defendant. It is argued that 'the charge is broad and general, and instructs the jury virtually that it makes no difference whether the defendant knew there were means consistent with his own safety or not; yet if, as a matter of fact, such means did exist and the defendant failed to resort to such means, whether he knew that they did exist or not, then he would be guilty of some degree of unlawful homicide.' We need not enter upon an extended discussion of these objections, because they have been removed by special instructions given by the court at the request of defendant as follows:

'(2) If you believe from the evidence that the defendant shot and killed Davis in a difficulty in which the defendant was not the aggressor, and which was not brought about by the fault of the defendant, that at the time of the shooting Davis acted in such a manner as to cause the defendant to believe, and he did believe, that he was in present immediate danger of suffering death or great bodily harm at the hands of Davis, and shot him by reason of such belief, and a reasonably prudent and cautious man, situated as the defendant was, seeing what he saw, and knowing what he knew, would have believed and shot as the defendant did, then the defendant would be justified in his act on the ground of self-defense, and it would be your duty to find him not guilty, even though you believed from the evidence that he was in no actual danger at the hands of Davis.'

'(4) If a person is assaulted by another, and is himself without fault in bringing on the assault, and the assault is of such a nature as reasonably to cause him to believe himself in present imminent danger of death or great bodily harm at the hands of his assailant, and he kills his assailant by reason of such belief in order to protect himself from such danger, he is justified; and, if you believe from the evidence in this case that the defendant was assaulted by the deceased, without fault of the defendant, in such a manner as to cause the defendant as a reasonable, prudent, and cautious man to believe, and he did believe, that he was in present imminent danger of losing his life or suffering great bodily harm at the hands of the deceased, and he shot and killed him while so believing in order to protect himself from such danger, he would be justified in his act, and it would be your duty to find him not guilty.

'(5) If the jury believes from the evidence in this case that there is a reasonable doubt as to whether the defendant at the time of shooting the deceased, if he did shoot him, was under reasonable apprehension that he was in imminent danger of losing his life at the hands of the deceased,

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