Mccray v. State
| Decision Date | 03 February 1925 |
| Parties | McCRAY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Broward County; C. E. Chillingworth, Judge.
Tom McCray was convicted of murder in the second degree, and he brings error.
Reversed.
Syllabus by the Court
Unintended killing of bystander by shot fired in self-defense justifiable. If the killing of the party intended to be killed would, under all the circumstances, have been excusable or justifiable homicide upon the theory of self-defense, then the unintended killing of a bystander, by a random shot fired in the proper and prudent exercise of such self-defense, is also excusable or justifiable.
Unintentional killing of bystander reduced to same grade of offense as if intended victim killed. If the killing of the intended victim in such a case would have been reduced by the circumstances to murder in the second or third degree, or to manslaughter in any of the degrees, then the unintentional and accidental killing of a bystander, resulting from any act designed to take effect upon the intended victim, would be likewise to the same grade of offense as would have followed the death of the victim intended to be killed.
Repetition of particular portion of charge after argument may be prejudicial error. Where the court charges the jury before argument of counsel, as required by statute, it may be prejudicial error for the court after the argument of counsel to give emphasis to a particular portion of a complete section of the charge already given by again giving the particular portion of the charge to the jury.
Farrington & Lockhart, of Lauderdale, for plaintiff in error.
Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.
Writ of error was taken to a judgment of conviction of murder in the second degree upon an indictment charging that Tom McCray 'did unlawfully, and from a premeditated design to effect the death of one John Dean,' fatally shoot John Dean.
One who kills one person through mistaken identity, while attempting and intending with premeditated design to kill another person, is guilty of murder in the first degree and the indictment in such a case properly alleges that the premeditated design was to effect the death of the person actually slain, since the law transfers the felonious intent in such a case to the actual object of his assault, and the homicide so committed is murder in the first degree. Hall v. State, 70 Fla. 48, text 49, 69 So. 692.
If the killing of the party intended to be killed would, under all the circumstances, have been excusable or justifiable homicide upon the theory of self-defense, then the unintended killing of a bystander, by a random shot fired in the proper and prudent exercise of such self-defense is also excusable or justifiable. Brown v. State, 84 Fla. 660, 94 So 874.
If the killing of the intended victim in such a case would have been reduced by the circumstances to murder in the second or third degree, or to manslaughter in any of the degrees, then the unintentional and accidental killing of a bystander, resulting from any act designed to take effect upon the intended victim, would be likewise reduced to the same grade of offense as would have followed the death of the victim intended to be killed. Pinder v. State, 27 Fla. 370, text 372, 8 So. 837, 26 Am. St. Rep. 75; State v. Carpio, 27 N.M. 265, 199 P. 1012, 18 A. L. R. 914, and notes.
The defendant testified that he thought Tom Dean had a gun and that
Other evidence tended to refute this testimony, but the defendant had a right to a consideration of his testimony by the jury under appropriate instructions as to the law applicable to the different phases of the evidence.
The court charged the jury before argument of counsel as directed by the statute (chapter 9364, Laws of 1923; Smithie v State, 101 So. 276, decided at the last term), and the charges given,...
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David v. State, No. 3D18-1143
...from liability if, in attempting to defend himself or herself, he or she unintentionally kills a third person."); McCray v. State, 89 Fla. 65, 66, 102 So. 831, 831 (1925) ("If the killing of the party intended to be killed would, under all the circumstances, have been excusable or justifiab......
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Lee v. State, 31489
...committed is murder in the first degree. Hall v. State, 70 Fla. 48, 69 So. 692; Pinder v. State, 27 Fla. 370, 8 So. 837, and McCray v. State, 89 Fla. 65, 102 So. 831. In the brief of appellant no question as to mistaken identity was raised. The state raises the point by the contention that ......
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Hedges v. State, 33567
...instruction fails to inform the jury fully and often leads to undue emphasis on the part given as against the part omitted. McCray v. State, 89 Fla. 65, 102 So. 831. The McCray decision is particularly persuasive. There the judge repeated certain charges on the degrees of homicide and faile......
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Brown v. State, 73--192
...of the case by them, and such course would often needlessly protract the proceeding.' 85 Fla. at 157, 95 So. at 574. In McCray v. State, 1925, 89 Fla. 65, 102 So. 831, the court charged the jury before argument of counsel, as then required by the statute. Following jury argument, the court ......