Kirkland v. State

• Decision Date: 06 April 1966
• Docket Number: No. 6057,6057
• Citation: 185 So.2d 5
• Parties: John W. KIRKLAND, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 5

185 So.2d 5

John W. KIRKLAND, Appellant, v. STATE of Florida, Appellee.

No. 6057.

District Court of Appeal of Florida, Second District.

April 6, 1966.

Robert E. Jagger, Public Defender, and Joseph F. McDermott, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

HOBSON, Judge.

Appellant, defendant below, was charged with first degree murder of one Solomon Pace in an indictment returned by the Grand Jury of Pinellas County, Florida, on 7 October 1964. He entered a plea of not guilty and trial by jury began on 22 October 1964. At the conclusion of the trial the jury rendered a verdict of guilty of murder in the second degree. Counsel in due course filed a motion for a new trial, which was denied. On 21 January 1965, the trial judge entered an order adjudging the appellant guilty of the offense of murder in the second degree and sentenced him for a period of six months to twenty years in the state penitentiary, less time spent in the county jail. Notice of appeal was filed 22 February 1965. Appellant filed some 58 assignments of error and has raised 9 points for consideration on appeal.

Allegedly, the appellant stabbed the deceased, Solomon Pace, with a fruit knife during a street fight in front of a bar. The state presented evidence to show that a short time before the incident in question occurred the appellant and the decedent's brother had an argument which resulted in the appellant pulling a knife on the decedent's brother, J. C. Pace. At this time the deceased came over to where his brother, the appellant and his wife were standing and told his brother, 'You shouldn't talk about people's wives,' and 'that is that boy's wife, and he is my friend.' Whereupon the appellant testified that he 'closed my knife and put it in my pocket, and started out the door.' The record further reveals that at this point the bar manager began closing for the evening and the remaining patrons, including the deceased, his brother, and the appellant's wife, left behind the appellant. Thereafter the appellant walked across the street to another bar but returned within a short time to where the decedent was standing on the porch of the bar which he had just left. As the appellant approached, the deceased was knocked onto the ground. The state presented three witnesses who testified that the appellant thereafter 'stuck' the deceased with a fruit knife. The record reveals inconsistency not only in the statements given by the state's witnesses as to how and who knocked the deceased onto the ground but the appellant, testifying in his own behalf, also presented a fact picture inconsistent and contrary to that presented by the state.

The appellant testified that after he had walked back across the street and had asked the deceased if he was ready to go home the following occurred:

'About this time--that time, one of the boys hit him down here and hit him down here. Samuel Miller, he hit him on the leg and jacked him up like that, and Jerry Haynes, Jerry Haynes, he run into him, and they fell out in the middle of the street.

'Jerry Haynes was the same boy that testified in here, and so when they fell out in the middle of the street, Jerry started hitting him and all in the face and everything, hitting him. He was on the ground, and so I come up to them and pulled him up like that, went to pull him up by his shoulders, and he flung me back and he said, 'a cop' and I run.'

During the course of the trial the state's case rested primarily upon the testimony of the three alleged eye witnesses to the...