Miller v. State

• Decision Date: 23 January 1918
• Citation: 75 Fla. 136,77 So. 669
• Parties: MILLER v. STATE.
• Court: Florida Supreme Court

77 So. 669

75 Fla. 136

MILLER v. STATE.

Florida Supreme Court

January 23, 1918

Error to Circuit Court, De Soto County; John S. Edwards, Judge.

Dave Miller was convicted of murder, and he brings error. Reversed, and a new trial directed.

Whitfield and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Premeditation is an essential element in the crime of murder under the statutes of this state. It should be alleged in the indictment and proved beyond a reasonable doubt at the trial. The mere fact of the killing does not raise a presumption of premeditation such as makes the offense murder in the first degree and cast upon the defendant the burden of showing that it was not. Something more than mere intention to kill must be shown; it is necessary that some circumstances admissible as evidence be shown from which may be legitimately inferred the fact of premeditation.

COUNSEL W. D. Bell and George Leitner, both of Arcadia for plaintiff in error.

Van C Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen for the State.

OPINION

ELLIS, J.

The plaintiff in error was convicted of murder in the circuit court for De Soto county, and seeks a reversal of the judgment on writ of error.

The assignments of error present the question whether the evidence was sufficient to support the verdict of murder in the first degree, an indispensable element of which was a 'premeditated design to effect the death of the person killed, or any human being.'

The facts briefly stated with reference to the particular point are, in substance, as follows: The deceased, Henry Wiggins, who was a deputy sheriff, and a negro named Ed Matthews were on the night of November 25, 1916, under instructions from the sheriff, guarding Peace river bridge east of Wauchula for the purpose of capturing a negro who had killed another at 'Petteway's Still' east of Wauchula, a short time before. Both men, Mr. Wiggins and Ed Matthews, were armed with shotguns. Ed Matthews was the only witness who testified as to the details of the shooting. He said that he and Mr. Wiggins at about 10 o'clock that night were standing at the foot of the bridge on the Wauchula side. The witness heard some one walking on the bridge, coming from the east side, with something on his shoulder. 'About that time,' the witness testified, 'I said, 'That is somebody now.' I was standing just this way (indicating), and this fellow kept walking, and just as he came up and he said hold up the gun fired. Q. Who said hold up? A. Mr. Wiggins, and the gun fired. Q. Where did the gun fire from? A. From the man that was coming on the bridge. Q. How many times die he fire? A. Once. Q. What did Mr. Wiggins do? What was Mr. Wiggins doing the time the gun fired? A. He fell. Just as the gun fired the man jumped over in the big ditch at the mouth of the big bridge. Q. Could you tell who the man was? A. No sir. Q. Do you know whether he was black or white? A. No, sir; I couldn't tell.' When the man who fired at Mr. Wiggins ran, Ed Matthews fired four times. The account of his shooting is given in the following words:

'Q. How long after that shot--I believe you said that you fired some shots? A. Yes, sir. Q. How many? A. I shot four times. Q. How long after that? A. The first shot, I guess, was about two minutes after Mr. Wiggins fell before I fired a gun. Q. What did you fire at? A. Just fired at the man that jumped off in the ditch. Q. You think it was as much as two minutes before you did that? A. I suppose so. Q. Then you fired four times in that direction? A. Four times, twice when he first jumped and then two more.'

The defendant testified that he heard no one tell him to halt; that after he had crossed the bridge some one shot at him, and he 'shot back that way'; that he was on his way to Wauchula to tell of the 'shooting' which had occurred at the mill, and which on cross-examination he seemed to admit that he had done.

We think this evidence is insufficient to prove premeditation on the part of the defendant to kill Mr. Wiggins.

Premeditation is an essential element in the crime of murder in this state. In a long unbroken line of decisions this court has so held. At times there have been discussions as to what constitutes premeditation, but at no time has any doubt been expressed that the element of premeditation on the part of the accused to kill should be alleged and proved beyond a reasonable doubt. Since the case of Dukes v. State, 14 Fla. 499, this court has held that the fact of killing merely does not raise a presumption of premeditation such as makes the offense murder in the first degree and casts upon the prisoner the burden of showing that it was not. See, also, Savage and James v. State, 18 Fla. 909; Ernest v. State, 20 Fla. 383; Adams v. State, 28 Fla. 511, 10 So. 106; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232; Cook v. State, 46 Fla. 20, 35 So. 665; Keigans v. State, 52 Fla. 57, 41 So. 886; Barnhill v. State, 56 Fla. 16, 48 So. 251. The language as used in the Dukes Case has many times received the approval of this court:

'If every homicide shall be presumed to be murder until the perpetrator show that the act is not murder, this emasculates the statute; for the design of the statute is to require that the degree or quality of crime shall be established by the proofs. The common law says the killing is murder; the statute says the unlawful killing is murder, manslaughter, or not criminal at all according to the facts and circumstances. And so it is to be ascertained from all the facts and circumstances whether any crime has been committed, and it cannot therefore be allowed that a man shall be adjudged guilty of the highest crime upon proof of only guilty of the highest crime upon proof of only being but one ingredient of the crime. The very terms of the classification of the different degrees of murder and manslaughter, and of justifiable and excusable homicide, require something more than the proof of the killing, because it cannot be determined without a consideration of all the 'facts and circumstances of each case' whether the act be murder, manslaughter, or the criminal intent be entirely wanting.'

The statute referred to was the statute of 1868 upon the subject of homicide, which with very slight changes not in substance is, the law in this state to-day. See section 3205, General Statutes of 1906; Florida Compiled Laws of 1914.

In the case of Cook v. State, supra, the court was divided on a charge given by the trial court defining premeditated design. The charge given was the following:

'No specific time is required to constitute premeditation. If the mind of the accused was in a condition to form a purpose, and there was sufficient time for the forming of that purpose, and for the mind to be conscious of that purpose to kill, it is sufficient time to constitute premeditation; and if the jury believe from the evidence, beyond a reasonable doubt, that the defendant had fully formed a purpose to shoot and kill Smith, and that he was conscious of that purpose when he fired the shot, they will find the defendant guilty of murder in the first degree.'

Chief Justice Taylor and Justices Shackleford and Hocker thought that the charge did not afford a proper definition of premeditated design and was erroneous, while Justices Carter, Maxwell, and Cockrell thought it did. And in the case of Stockes v. State, 54 Fla. 109, 44 So. 759, this court said:

'Premeditated design is more than an intent to kill.'

Mr. Justice Whitfield, concurring, said:

'The phrase 'a premeditated design to effect death' means a design to effect the death that was thought upon for any length of time, however short a time, before the act which effected the death from the premeditated design. The word 'premeditated' has reference to, and is descriptive of, the design that the statute makes an essential element of the crime. A premeditated design to effect the death of a human being is a design to kill a human being, which design was thought upon before the act that unlawfully effected the death. The killer must have thought upon the design to kill during some time, however short, before the fatal act.'

Mr Justice Cockrell prepared a concurring opinion, in which he said:

'It is admitted that design and intent are practically synonymous.'

If so then premeditated design means premeditated intention. So that something more than intention to kill is necessary to be proven to establish against one the charge of murder in the first...