Linsley v. State

Decision Date07 July 1924
Citation101 So. 273,88 Fla. 135
CourtFlorida Supreme Court

Rehearing Denied July 25, 1924.

Error to Circuit Court, Madison County; M. F. Horne, Judge.

S Linsley was convicted of murder in the second degree, and he brings error.


Syllabus by the Court


When defense of self-defense available, stated. In the trial of one upon a charge of murder, the defense of self-defense is available only when there exists reasonable grounds to apprehend a design to commit a felony or to do some great personal injury to the defendant and there shall be imminent danger of such design being accomplished, and the defendant must not have wrongfully occasioned the necessity and must have used all reasonable means in his power, consistent with his safety, to avoid the danger and to avert the necessity of taking human life. The circumstances must be such as to induce a reasonably cautious and prudent man to believe that the danger was actual and the necessity real, in order that the slayer may be justified in acting upon his own belief to that effect.

Taking human life neither justifiable nor excusable where fatal wound inflicted after danger to slayer passed. The taking of human life is neither justifiable nor excusable, where the fatal shot is fired or the fatal stroke given after danger of death or great bodily harm to the defendant has passed.

Assignments of error on exclusion of testimony must show admissibility. Assignments of error, based upon the exclusion of testimony to be available must be so presented to an appellate court as to make it to appear that the excluded testimony was relevant and material, or otherwise proper to be admitted.

Plaintiff in error has burden of proving substantial error. Upon a writ of error, the plaintiff in error has the burden of proving substantial error; a showing of mere technical error may not be sufficient.

Judgment not reversed for technical trial errors unless fundamental rights of accused violated. Where no fundamental rights have been violated and the evidence of guilt is amply sufficient technical errors in ruling on the admission of testimony or in giving or refusing charges will not cause a reversal.

Assignments of error not argued will not be considered. Assignments of error not argued are abandoned, and will not be considered by the appellate court.

Juror not heard to impeach own verdict by showing matters resting in his personal consciousness. The affidavit, deposition, or statement of a juror will not be received to impeach his own verdict, where his deposition or affidavit or statement relates to matters resting in the personal consciousness of the joror.

Jurors' affidavits, showing matters which do not essentially inhere in verdict, admissible to avoid it. The affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. Such general rule is subject to the qualification, however, that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter, occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself.

Court may examine jury, on motion for new trial, to determine effect on verdict of alleged prejudicial misconduct. Where during the trial of a criminal case and before the jury has received its instructions from the court, and during a recess, the jury has access to a law book and copies of certain charges, it is proper for the trial court, when the verdict is attacked for such reason, to ascertain from the testimony of the jurors whether any misconduct prejudicial to the defendant resulted from such circumstance.


Chas. E. Davis, of Madison, for plaintiff in error.

Rivers H. Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.



In April, 1923, the plaintiff in error, Linsley, was indicted for the murder of William R. Pickles, and was convicted of murder in the second degree. A writ of error was taken to the judgment. There are 38 assignments of error; one of which rests upon the order overruling a motion for a new trial, which itself contains 31 grounds.

The case was a very simple one and the material facts few. The plaintiff in error, who about two years and a half before the homicide moved from the state of Georgia, near Valdosta, and settled in Madison county near Mosley Hall, became involved in a controversy with Mr. Pickles, an elderly man and long-time resident of the community, over a boundary line, or a line fence. The dispute, instead of being settled amicably between the parties, seemed to grow and produce bad feelings between the parties until the community was to some degree affected by it, to the extent, at least, that a movement was begun on the part of the neighbors to try and buy out the defendant and induce him to leave the community.

On the 22d day of January, 1923, Mr. Pickles left his home on the St. Augustine road, riding a mule; he carried in the left-hand rear pocket of his trousers a small shingling hatchet. It was customary for him to carry the hatchet or an axe when going to work or into the woods or fields. As he approached the residence of the defendant, the latter met him in the road. He was armed with a pistol and walking.

Some words were exchanged between the two men and then the defendant drew his pistol, fired at Mr. Pickles three times, inflicting mortal wounds. Mr. Pickles fell from his mule and died almost instantly in the road.

There were several witnesses to the transaction. The defendant himself said that he killed the deceased under the circumstances related above, but he said that Mr. Pickles accosted the defendant with the insinuation that the defendant was waylaying him, and when the defendant denied it, Pickles called him a liar, and then 'raised his hatchet as he was going to strike me.' The defendant said:

'I thought that he had already thrown the hatchet, but he pulled the mule right on around and got as close to me as that gentleman there (indicating). I had my knife in my right hand as I was whittling, and I changed the knife to my left hand and came pretty near falling down in going backwards, and then I got my pistol and shot three times.'

According to this statement, the defendant fired to kill his enemy, after he thought all danger had passed, so far as the hatchet as a weapon in the hands of Mr. Pickles was concerned.

But this story was refuted by the testimony of witnesses to the transaction who arrived upon the scene immediately after the difficulty, and who testified that the hatchet was still in the left-hand hip pocket of the deceased. The jury did not believe the defendant's story about acting in self-defense, but did find him guilty of a lesser degree of murder than that with which he was charged.

There was much evidence about the character of the neighborhood disturbance which seemed to focus upon the defendant and Mr. Pickles, or, at least, to grow out of their difference, and an elaborate theory of self-defense woven out of its many details.

Much evidence was received as to the details of the movement in the community to but out the defendant and induce him to leave. The defendant's counsel was pleased to refer to it as a mob, of which the deceased was to be a party, and which was going to form and go to defendant's house and, if need be, do him bodily harm; concerning all of which defendant had been informed, and much evidence was taken as to how he received the information, or whether he received it at all, and what he said about it.

Several assignments of error rest upon rulings affecting much of this really immaterial matter.

The defendant was tried for murder. In his testimony he admitted the killing but interposed the defense of self-defense. His own statement, if not upon its face a refutation of his defense, was completely refuted by ample evidence which the jury evidently believed.

His only possible justification of the killing of William R. Pickles was that the latter, at the time the defendant fired, was trying to kill the defendant with the hatchet or inflict serious harm upon him with it.

But there were two reasons why that defense was not effective. One appeared in the statement of the defendant himself, when he said that he thought Pickles had thrown the hatchet and defendant then fired; and the other was in the testimony of witnesses who said that, when they ran to the deceased, who was lying in the road, the hatchet was still in his hip pocket.

If Pickles did not draw the hatchet and attack the defendant with it in such manner as to induce a reasonable belief on his part that he was in imminent danger of death or great bodily harm from such attack, or, having thrown the hatchet at defendant, was therefore no longer in possession of it when defendant fired, then the killing of Pickles was unnecessary, unjustified, and unlawful; although a mob had been formed, of which Pickles whs to have been a member, and which was to go to defendant's house and run him away or do him bodily harm.

The law of justifiable homicide by self-defense has many times been set forth in decisions of this court. There must be reasonable grounds to...

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  • Brown v. State
    • United States
    • Florida Supreme Court
    • November 15, 1938
    ... ... jurors signed affidavits to support the statement and they ... [184 So. 525] ... were filed in support of the motion as made by counsel for ... defendant. We do not think the motion had merit. See Lamb ... v. State, 90 Fla. 844, 107 So. 530; Linsley v ... State, 88 Fla. 135, 101 So. 273. The record here shows ... that the extraordinary motion for a new trial was filed some ... thirty-five days after the rendition of the verdict, while ... Section 4497, C.G.L., requires that a motion for a new trial ... shall be made within four days ... ...
  • City of Miami v. Bopp
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    • December 6, 1934
    ...exceptions to that rule, and especially that exception which is generally recognized by the courts of this country. In Linsley v. State, 88 Fla. 135, 101 So. 273, 275, said: 'It is upon grounds of public policy that the rule is observed that the affidavit, deposition, or statement of a juro......
  • Fenner v. Commonwealth
    • United States
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    • June 13, 1929
    ...guilt is ample and no fundamental rights of the" accused "have been infringed. Chesser v. State, 85 Fla. 151, 95 So. 610; Linsley v. State, 88 Fla. 135, 101 So. 273. We fully appreciate the extreme delicacy of duty involved in a pronouncement by an appellate court that testimony, the admiss......
  • Fenner v. Commonwealth
    • United States
    • Virginia Supreme Court
    • June 13, 1929
    ... ... , but the better doctrine seems to be that it is not a defense in the accurate meaning of the term, but a mere fact shown in rebuttal of the State's evidence; and consequently, the evidence introduced to support it should be left to the jury, uninfluenced by any charge from the court tending to ... Chesser State, ... Page 1029 ... 85 Fla. 151, 95 So. 610; Linsley State, 88 Fla. 135, 101 So. 273. We fully appreciate the extreme delicacy of duty involved in a pronouncement by an appellate court that testimony, ... ...
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