Lovett v. State

• Decision Date: 22 October 1892
• Citation: 30 Fla. 142,11 So. 550
• Parties: LOVETT v. STATE.
• Court: Florida Supreme Court

11 So. 550

30 Fla. 142

LOVETT v. STATE.

Florida Supreme Court

October 22, 1892

Error to circuit court, Duval county; W. B. YOUNG, Judge.

Dave Lovett was convicted of murder, and brought error. A former judgment of reversal (11 South. Rep. 172) was vacated, and a writ of certiorari issued to have the record properly certified, (11 South. Rep. 176.) On reinstatement on the docket, and the correction of the record, the judgment of conviction is reversed.

Syllabus by the Court

SYLLABUS

1. The futility of objecting that the trial judge did not instruct the jury upon all the grades of homicide to which the evidence may be reasonably applicable must, in the absence of a request for instructions on the lesser grades than that of which the accused was convicted, be considered as settled in this court, and as meriting no discussion in future opinions.

2. It is not erroneous to charge that 'the premeditation which the law requires to constitute murder in the first degree need not be for any particular length of time; that it is sufficient if the premeditation was but for a moment provided that the action of the slayer was the result of such premeditation.' The use of the word 'moment' does not imply less time than was necessary for deliberating upon the subject of killing, and forming a distinct design or determination to kill, of which the defendant was fully conscious before firing the fatal shot. The premeditation or deliberation need not be for any particular length of time but it of course must be of sufficient duration to enable the slayer, under the circumstances of each case, to form a distinct and conscious intent to kill.

3. The question of premeditation is one of fact for the jury, who must say whether the killing was the result of an intention formed upon premeditation of the subject, and, consequently murder in the first degree; or, on the contrary, that the circumstances were such that the killing was not preceded by deliberation on the subject, resulting in the formation of such a design to kill.

4. A charge definding 'malice' as ordinarily defined by the authorities, and then stating that an act is done maliciously when done on purpose and with evil intent, is not erroneous, nor is it to be taken as qualifying a former instruction to the effect that, to constitute murder in the first degree, there must be a killing without authority of law, and from a premeditated design to effect the death of the person killed.

5. The instruction to a jury that, 'where the law says you must be satisfied beyond a reasonable doubt before you can convict, it means that your mind must be so thoroughly convinced that you would act upon the conviction in matters of the highest concern and importance to yourself,' disapproved, as requiring no higher degree of proof than a preponderance of evidence, and as giving the juror no definite idea of his duty, and as calculated to mislead him. A 'reasonable doubt,' as explained by best authorities, and as heretofore sanctioned by this court stated.

6. An instruction that to excuse homicide there must exist on the part of the slayer an actual necessity to kill in order to prevent the commission of a felony of great bodily harm, or a reasonable belief in his mind that such necessity exists, is not erroneous.

7. A charge to the jury that 'a necessity, brought about by the party who acts under its compulsion, cannot be relied upon to justify his conduct, and an aggressor in a personal difficulty--one not reasonably free from fault--can never be heard to acquit himself of liability for its consequences on the ground of self-defense,' is correct.

8. The trial judge charged: 'The owner of premises owns the soil to the middle of the street in front of his premises, subject only to the right of the public to pass and repass upon the highway; and one who stands in front of the premises of another on the highway, just outside of his inclosure, and abuses the owner of the premises, is a trespasser.' There was no testimony justifying the conclusion that the lot was bounded by the street, or that the deceased was the owner of the lot mentioned, or that his premises extended to the side of the street. Held, that the charge was irrelevant.

9. An instruction that the law gives the jury the right to recommend the prisoner to the mercy of the court in the case of conviction, if a majority of their number so decide, is not a suggestion to the jury to abuse their discretion to the disadvantage of the accused, but is a substantial compliance with the view heretofore expressed, and still entertained, that the function of the judge in instructing the jury under the act of 1877 (McClel. Dig. p. 448, s 19; Rev. St. s 2924) is best performed by simply giving the terms of the act to the jury, and informing them that the making or withholding of the recommendation is a matter entirely within the discretion of a majority of them.

COUNSEL

Robert S. Cockrell, for plaintiff in error.

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

OPINION

The following statement is by RANEY, C.J.:

The testimony in behalf of the state was as follows:

Neal Mitchell, M. D., testified that one March Scroggins did come to his death in said Duval county from peritonitis, consequent upon a gunshot wound; that said wound was inficted on the 11th day of September, A. D. 1891; and that death ensued therefrom on the 23d day of September aforesaid.

A. J. Wakefield, M. D., testified to the same tenor and effect.

R. E. Wheeler testified that on the morning of the said shooting he was coming into town from his home in Brooklyn,--a division of the city of Jacksonville, and in said Duval county; that he saw a negro boy standing in front of the premises of said March Scroggings, in the street, about 10 feet from the gate of said premises; that said negro boy was swearing at said March Scroggins, who was at the back of his house, drawing water; that said negro boy did draw an imaginary line on the ground, and dared said Scroggins to cross it; that said Scroggins started towards said negro boy, who then drew his pistol, snapped it, recocked said pistol, and shot the said Scroggins; that then the said boy ran off, crying out that no one should lay hands on him.

Charles Thomas testified that on the morning of said shooting he saw defendant and one George Scroggins walking towards the house of said March Scroggins, and followed them; that witness stopped in front of the house of said March Scroggins, and on the opposite side of the street; that he saw the defendant run from behind said house, and said defendant was cursing and swearing; that said defendant, having arrived in front of said house, in the street, made a line with his foot, and dared said March Scroggins to cross said line; that said March Scroggins started from the back of his house towards said defendant, saying something, the words of which witness could not distinguish; that defendant shot with a pistol aimed at said March Scroggins, as the latter reached the gate; that then said delendant ran off, threatening any one who might attempt to catch him.

Lytle testified that he heard the noise of a pistol, saw some one running, and, on reaching said house, found that said March Scroggins had been shot.

The testimony for the defense is as follows:

George Scroggins testified that on the morning of said shooting he met said defendant in the woods, practicing with his pistol at various trees. That in the course of a conversation between the two defendant asked witness if his uncle, the said March Scroggins, was at home, stating that said March Scroggins owed defendant 50 cents, which he (defendant) wanted to collect. Witness said, 'Yes, he is at home, and has some money now.' The two then proceeded to said March Scroggins' house. On arrival, defendant requested witness to ask his uncle to come out, but witness advised defendant to go back to the kitchen, where his uncle was preparing breakfast. That defendant then knocked at the kitchen door. That said March Scroggins opened the door, and, without giving defendant time to state the object of his visit, did pick up a stick, and, seizing defendant by his neck, did throw him off the steps. That thereupon defendant ran out of the yard swearing. That when defendant got outside he called said March Scroggins a 'son of a bitch,' and dared him to come out. That his uncle, the said March Scroggins, who was a large, powerful man, much larger and stronger than defendant, started through his house and towards defendant, saying, 'I will give you a good beating,' or 'will beat the life out of you.' Witness not clear as to exact language used. That when his uncle reached the gate, defendant shot, and then ran.

The defendant, for himself, testified to the same facts that preceding witness testified to, but added that the deceased struck him after throwing him off the steps.

The other facts are stated in the opinion.

RANEY C.J.

This cause having been restored to our docket, (Lovett v. State, 29 Fla. ----, 11 South. Rep. 176,) it stands now for consideration under such assignments of error as have not been disposed of heretofore, (Lovett v. State, 29 Fla. ----, 11 South. Rep. 172.)

I. The objection urged in connection with the first paragraph of the charge is that the trial judge should have instructed the jury upon all the grades of homicide to which the evidence may be reasonably applicable. The futility of such an objection, in the absence of any request for instructions on the lesser grades of homicide, must be regarded as forever settled in this court, and as meriting no discussion in future opinions. The authorities from Cato v. State, 9 Fla. 163, (A. D. 1860,) to Blount v. State, 11 South. Rep. 547, (decided at the...