Marshall v. State

• Court: Florida Supreme Court
• Writing for the Court: RANEY, C.J.
• Citation: Marshall v. State, 32 Fla. 462, 14 So. 92 (Fla. 1893)
• Decision Date: 20 November 1893
• Parties: MARSHALL v. STATE.

14 So. 92

32 Fla. 462

MARSHALL v. STATE.

Florida Supreme Court

November 20, 1893

Error to circuit court, Columbia county; John F. White, Judge.

Dallas Marshall was convicted of murder in the second degree, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Danger to many or 'others' is, under section 2380 Rev. St., not an essential to murder in the second degree, as it was under section 2, p. 350, McClel. Dig., and now proof of an intent upon the part of the accused to kill a particular individual or 'another' does not exclude a conviction of murder in the second degree. Johnson v State, 4 South. 535, 24 Fla. 162, approved and distinguished.

2. The fact that the evidence in a case may be sufficient to sustain a verdict of murder in the first degree will not of itself preclude a conviction of murder in the second degree as this degree is defined by section 2380, Rev. St.

3. Where it is sought to review the action of a trial court on the ground that the verdict is contrary to the evidence, all the evidence that was before that court must be presented to the appellate court, or it will refuse to enter upon a consideration of the question.

4. Where a correct instruction is requested by the accused, it is error to refuse it as having been already more correctly given in accordance with the evidence, where the charge referred to as having given it more correctly makes essential to an acquittal conditions or propositions that are not contained in the rejected instruction.

5. Where a charge, if erroneous at all, is clearly favorable to the accused, he cannot claim further consideration of it as a ground for reversal.

6. Where the state, in making proof of its case, puts in evidence the statements made to other persons by the accused of the circumstances of the killing, it is error for the judge to instruct the jury that 'for obvious reasons said statements and admissions should be received with caution,' where it cannot be said that the jury's understanding of the instruction was that caution should be exercised in his favor in weighing the statement.

7. The rules as to the admission in evidence of the accused's declarations of the circumstances of the homicide when they are offered by the state in proof of its case, and as to the credibility to be attached to the same by the jury discussed.

COUNSEL B. H. Palmer, for plaintiff in error.

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

OPINION

RANEY C.J.

The jury found the plaintiff in error guilty of murder in the second degree, and the sentence prescribed by the law (section 2380, Rev. St.)--imprisonment in the state prison for life--was pronounced by the court, and it is contended here that the testimony does not sustain the verdict. The stated section of the Revised Statutes has, as will appear by comparing it with section 2, p. 350, McClel. Dig., made a change in the law of murder as it stood at the time the revision became operative, (June 13, 1892.) There are still three degrees of murder, but they are defined as follows: The unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, or burglary, is murder in the first degree. Murder in the second degree is when the unlawful killing is perpetrated by any act imminently dangerous to another, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. Murder in the third degree is when the unlawful killing is perpetrated without any design to effect death, by a person engaged in the commission of any felony other than those specified above.

The change made in defining murder in the first degree consists in the addition of the words following the word 'being' down to and inclusive of the word 'burglary,' but the only change in the old definition of murder in the second degree is the substitution of the word 'another' for the word 'others.' Murder in the third degree, under the old law, was where the unlawful killing 'was perpetrated without any design to effect death, by a person engaged in the commission of any felony.'

Counsel for the prisoner invokes the decision of this court made at the January term, 1888, in Johnson v. State, 24 Fla. 162, 4 So. 535, in support of the contention referred to above. It is to be observed of that decision that its purport, as to the point relied on, is that, if the effect of the testimony was to show in the accused an intent to kill any particular person, such proof, as the statute then was, excluded the case from murder in the second degree. Putting the lives of many in jeopardy, or imminent danger to many, was an essential to the offense under the old statute; and, though no deadly intent was necessary to the offense, and a general deadly intent, an intent to hurt many, did not exclude a case from it, yet a particular deadly intent, or intent to kill a particular individual, did work an exclusion. This is clearly shown by the case of Darry v. People, 10 N.Y. 120, decided in the year 1854,-14 years before we adopted the same statute there construed. Of the correctness of the decision in Johnson's Case none of us feel any doubt. The change of language indicated above to have been made by the revision in substituting 'another' for 'others' is, however, material, and its effect is to remove the former exclusion of cases where danger to only one person is shown; and consequently, if the testimony before us shows a premeditated design on the part of the accused to effect the death of the deceased, or is sufficient to sustain a conviction of murder in the first degree, such particular deadly intent will not prevent an affirmance of the judgment. The fact that the evidence may be more than sufficient to sustain the verdict, or would support a conviction of a higher degree of murder, will not render it insufficient to do so, nor can the prisoner complain of the error of the jury in finding a verdict for the lesser offense. Brown v. State, 31 Fla. 207, 12 So. 640. Murder in the second degree is no longer an offense in which there must be danger to many.

II. Before proceeding to the consideration of any other question there is a preliminary point to be considered, it being whether or not the bill of exceptions does not show upon its face that the entire material case presented to the jury is not before us. In the first place, it states that one of the witnesses--William McNish--gave the dimensions of the wounds. These dimensions are not stated. Again it says that Marshall's gun was exhibited to the jury, but it has not been brought here. And then it says that Henry See explained to the jury the diagram made by him; still the explanation is not set forth. Assuming, but not deciding, that the absence of the gun which was put before the jury by the defendant may be immaterial in view of the fact that there is no conflict in the evidence as to the marks on it, and even making the same assumption as to the explanations of the diagram by See on the theory that his explanation was nothing more than the usual tracing of lines and pointing out the objects designated on the diagram,--an assumption of a most questionable character, in view of the imperfectness of the diagram in the record,--we must still say, in view of the absence of the dimensions of the wounds, that it is very doubtful that this case could be considered by us on the ground that the verdict is contrary to the evidence. Where it is sought to review the action of the trial court on the ground just stated, all the evidence which was before that court must be presented to the appellate court, or it will refuse to enter upon a consideration of the question. Lurton v. Carson, 2 Blackf. 464; Hammon v. Sexton, 69 Ind. 37; Morris v. Stern, 80 Ind. 227; French v. State, 81 Ind. 151; Shimer v. Butler University, 87 Ind. 218; Keep v. Kelly, 29 Ala. 322; Pullen v. Lane, 4 Cold. 249; 2 Amer. & Eng. Enc. Law, 220. Counsel who bring cases here must not be surprised at our refusal to sit in review of any judicial action where it does not appear that all of that upon which the lower court acted is before us. In view of the fact that the case has to be reversed on the ground considered in the next subdivision of the opinion, the bill of exceptions showing enough for action on the points there discussed, ( Seymour v. Creswell, 18 Fla. 30,) we do not now say any more on this subject than to observe that the greatest care should be taken by all...