Mayo v. State

• Decision Date: 16 March 1954
• Parties: MAYO v. STATE.
• Court: Florida Supreme Court

Page 899

71 So.2d 899

MAYO v. STATE.

Supreme Court of Florida, En Banc.

March 16, 1954.

Rehearing Denied May 4, 1954.

Liddon, Isler & Welch, Panama City, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

DREW, Justice.

The appellant, Ellis Mayo, was indicted by the Bay County Grand Jury for the first-degree murder of one S. W. Coram, was tried therefor, convicted by a jury of murder in the second degree and sentenced to a thirty year term in the State Prison. From the judgment and sentence this appeal is prosecuted.

The record shows that about 4:00 P.M. on Saturday, October 6, 1951, at West Bay, Florida, the appellant and the said S. W. Coram, a local constable, engaged in an exchange of several pistol shots with the result that Coram was fatally wounded by a bullet entering midway at his left collar bone and emerging under his right arm. Both parties used 38 calibre pistols. Several witnesses saw some or all of the shooting. That Coram fired the first shot was clearly established by eyewitnesses and was not disputed. The shooting took place out of doors.

Appellant's version of the shooting was that shortly before the event, he was riding in his car in the vicinity with his brother, Jack, who was driving. They were stopped on the road by Constable Coram, who ordered Jack out of the car, searched him, and said he was going to take him to jail for driving while drunk. Appellant and Jack then voluntarily left their own car and got into Coram's car. Coram started toward town, but on the way the two brothers talked Coram into changing his mind about taking Jack to jail and Coram then turned around and returned to where appellant and Jack had left his car, stopping close to it.

At about the time he was stopping his car, Coram told appellant and his brother to stay away from the vicinity or he would lock them up, to which appellant replied they 'could go any place they pleased.' When Coram stopped the car he quickly opened his car door and got out. Appellant, who was sitting in the front seat with Coram, opened the door on the right in order to get out of the car and at the time observed Coram out of the car on the left side with his gun in his hand. Coram, with both doors of the car open, shot through the car at appellant, who pushed back and jumped out, simultaneously drawing his own pistol and firing at Coram. Coram went to the left rear of his car and appellant went to the front of the car and around it and saw Coram at the left rear fender. Coram whirled and fired and appellant shot back at him. Appellant then ran toward a nearby building to get better protection from Coram, his own gun being empty because it had contained only two live shells. Upon looking back, appellant saw Coram on the ground and returned to find him dead. Appellant then took Coram's gun and drove away in his own car with his brother Jack. Appellant says they left because they were afraid of Coram's boys. Appellant had on his person additional live shells which were divided between the two guns.

The appellant's version of the immediate circumstances of the shooting itself as related above, was corroborated by his brother and others and was not contradicted in any material respect, except as to the total number of shots fired, which was variously stated as being from four to eight.

As to earlier events of that same day bearing on the homicide, appellant testified that he left home about 10:00 A.M., took a cab to Panama City and other places, stopping twice to buy Vodka--half a pint and one pint. He remained with the cab driver until about 3:00 P.M., when he went to his mother's home and found his wife, his brother and his car. He took his own car and left with his brother to go to West Bay. In the car was a pistol appellant had recently purchased from a soldier. To try out the gun for the first time, appellant stopped on a side road, got out of the car, and fired four times at a pine tree, after which he carried the pistol in his belt without reloading. The brother, Jack, drove because the car was new and he wanted to try it. Appellant with his brother then went to West Bay to visit a girl and upon arriving there they saw Coram at the place and drove on by because the day before Coram had warned appellant to stay away from West Bay. They later returned after seeing Coram had left, but being advised that the girl was not there they departed and shortly thereafter were stopped in the road by Coram.

Witnesses for the State testified to the following matters: that Coram was an expert with guns; that at the time of the shooting there were seen spurts of dirt behind Coram but none behind appellant; that Coram arrested appellant a week before the shooting; that on the afternoon of the shooting, appellant stopped at a juke joint, looked around and departed after saying, 'The damned Constable's not here.' One State witness (Ellis Scott) testified that on the afternoon of the shooting while driving along the highway he saw Coram's car parked and was flagged down by Coram so that he stopped and started walking back to Coram's car; that Coram and appellant each got out of the car and Coram said nothing but appellant said: 'Boy you had better keep on going'; that at the time he did not see Coram's gun or holster but appellant held a gun in his hand pointed at no one. Appellant denied the substance of this testimony, stating Scott passed as they were turning around and at Coram's request appellant told Scott there was no trouble and to go on.

In this appeal the State contends that from the foregoing evidence the jury was entitled to infer and believe that appellant formed a grudge against Coram following his earlier arrest and purchased a gun to use on Coram if Coram should bother him again; that on the day of the shooting appellant's travels before the shooting were to locate his car primarily to obtain the gun kept therein and that when he found the car he went to West Bay in search of Coram and not to see the girl; that appellant practiced using the pistol 'so as to be sure he wouldn't miss when he later saw Coram,' and he then carried it in his belt 'so as to have the gun ready for instant use on Coram,' that appellant 'fortified his courage with Vodka,' and went to West Bay searching for Coram; that while appellant and his brother were in Coram's car, appellant disarmed Coram and that either he or his brother substituted blank cartridges in the gun and, just as they returned to West Bay, appellant returned the gun to Coram and 'said something by way of threat or insult which goaded Coram into firing at the appellant.'

The State further argues, and we now quote from its brief:

'These facts add up to a convincing total. When an expert pistol shot fires pointblank into a car at a man sitting on the front seat, with the door beside the man closed, and neither touches the man nor the car and, after the man gets out on the ground, shoots at him again without touching him, and the last shot fired at the time the expert fell sounded peculiarly different from the preceding shots, the jury is entitled to believe that the expert's gun had been doctored by substituting blank cartridges for the live ones ordinarily carried in it.

'Appellant made sure that nobody would ever be able to examine the cartridges in Coram's gun to see whether the cartridges in it, both fired and unfired, were blank cartridges. He took Coram's gun with him when he fled the scene and his brother Jack 'threw the old shells out' and put in some shells that the appellant got out of his pocket and handed to Jack. We find in the record no explanation by the appellant of why he went to the trouble to take Coram's gun off and have the shells in it removed and others inserted, and under all of the circumstances the jury was entitled to believe that it was for the purpose of covering up his substitution of blank shells for live ones Coram had put in his gun. True, the appellant said that he left the scene because he was afraid of the Coram boys, but we find no claim that he took Coram's pistol through fear of anybody and we note that the only Coram boy named in the record, Lloyd Coram, was a special deputy sheriff for Jenkins' Drive-In, miles away from West Bay. So there was nothing in the appellant's testimony to stand in the way of the conclusion that he took Coram's pistol off for the purpose of trying to conceal his substitution of blank cartridges for live cartridges in said gun.'

The State's argument continues:

'All of which justified the finding that the appellant deliberately planned to kill Coram; that in furtherance of the plan he worked things around to where he found himself in Coram's car, on the front seat with Coram; that he 'jumped' Coram with the use of a pistol and took Coram's gun away from him; that, having recently had trouble with Coram, he didn't want to...