Larry v. State
| Citation | 104 So.2d 352 |
| Parties | James H. LARRY, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 11 July 1958 |
| Court | United States State Supreme Court of Florida |
Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.
Appellant, James H. Larry, was indicted, tried and convicted of murder in the first degree without recommendation to mercy. The indictment charged that appellant 'unlawfully and from a premeditated design to effect the death of one Alex Salters, did kill and murder the said Alex Salters by chopping and cutting him with a hatchet or other blunt instrument.' The death penalty was imposed and this appeal was prosecuted.
Appellant offers three questions as basis for reversal and treats them together but we think they may be comprehended in the single question of whether or not the evidence is sufficient to show a premeditated design on the part of appellant to murder Alex Salters.
Appellant was the only witness to the tragedy which is shown to have been committed in the early afternoon of October 12, 1956. It occurred at the home of the deceased, his wife being away at work and his only child was at school. It is not disputed that appellant went to Alex Salters' home and engaged him in combat but he says that Salters precipitated the controversy by accusing him of 'pimping' on Salters concerning the 'moonshine business' and that he struck the first blow with the hatchet when Salters pulled a gun on him and threatened to kill him. The physical facts revealed by police officers and the examining physician show that Salters' body was found on the floor of his living room between 4:30 and 5:00 P.M., on the day of the murder. He was lying on his back with his neck about half severed and cuts on both sides of his head. The doctor testified that the head was 'beat to a pulp like crushed ice,' which would require at least six blows with a weapon like the hatchet introduced in evidence. There was blood on the front porch and inside the living room; there was blood spattered on the walls, curtains and window shades. There was a bucket of bloody water on the kitchen table and blood was smeared on the back door leading from the kitchen to the yard.
Appellant was arrested the night following the homicide (Friday). By Monday following, he made statements about the crime to the sheriff, the deputy sheriff, the state attorney and the police officers. Testimony as to what he said on those occasions was given without objection. On Sunday night the appellant charged two others with killing Salters and they were taken in custody. Appellant then proffered to show the sheriff where one of the two had concealed the hatchet. He led the sheriff to the place in the woods where the hatchet was hidden, but on return to the jail in Quincy, appellant apologized to the two men whom he had falsely accused of the homicide, admitted that he killed Salters with the hatchet, washed the blood from it in the bucked of water on the table in the kitchen and left the premises. On Monday morning he led the state attorney and the sheriff to a place in the woods where he had hidden the pistol and the $245 which he said Salters gave him after the assault and admonished him that 'they are going to catch you' and you will need it but that he would not need it.
In a statement to the chief of police appellant admitted that he knocked Salters in the head with the hatchet when Salters struck him in the stomach during the argument near the front porch, that he dragged Salters into the living room and from thence he knew nothing of what happened. The chief of police asked him why he did not shoot Salters with the pistol instead of 'butchering him up' and his response was that people living close by would hear the shooting and would know who did it. As to questions about the money, he told the chief of police that Salters gave it to him saying 'I'm going to die, you'll need the money and I won't need it any more.'
Appellant's version of the combat was about as follows: after accusing him of 'pimping' on the colored people for selling whiskey, Salters said he was going to kill appellant; he pulled a gun from his pocket and appellant picked up the hatchet on the porch floor and hit Salters on the side of the head and knocked him to his knees. Salters arose, seized appellant by the collar when appellant snatched the gun from Salters' hand and put it in his pocket. During this struggle they went from the porch into the house; Salters struck appellant on the nose, he tried to run but Salters grabbed him and the fight continued. He admitted hitting Salters twice with the hatchet after they entered the house. He denied hitting him on top of the head or on the throat. He further testified that during the struggle deceased held appellant with one hand, put his free hand in his back pocket, pulled out his wallet, put it between his knees, took the money from it, put...
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