Milton v. State

• Decision Date: 13 April 1898
• Citation: 40 Fla. 251,24 So. 60
• Parties: MILTON v. STATE.
• Court: Florida Supreme Court

24 So. 60

40 Fla. 251

MILTON v. STATE.

Florida Supreme Court

April 13, 1898

Error to circuit court, Hillsboro county; Barron Phillips, Judge.

Thomas Milton was convicted of murder, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An indictment for murder, complete in form in alleging the offense and the mortal wound inflicted, and further stating of which said mortal wound the deceased then and there, in the county named, did languish, and languishing did live until a date mentioned, less than a year from the time when the wound was inflicted, upon which last day the deceased, in the county stated, did die, sufficiently alleges that the death of the deceased was caused by the wound inflicted.

2. Previous declarations of an accused, evincing a purpose to kill a deceased, made at a time not too remote from the occurrence, may be shown as bearing on the question of intent to kill and the animus of the accused towards the deceased.

3. Under a count in an indictment alleging that the accused made an assault upon a third party with intent to murder him, and then and there shot and killed the deceased, it is competent to show that the third party, at the time and in the same occurrence, was shot, and also the character of the assault upon him.

4. The state summoned a witness, but did not examine her, and she was placed on the stand for the accused. On cross-examination the state attorney asked if she had been convicted of any crime in this state. This question was objected to on the ground that the state could not impeach her own witness. Held, that the state was not precluded from asking the question; and, further, that the mere summoning of a witness for the state, without any examination, did not entitle the accused to treat the witness as one examined and vouched for by the state.

5. The accused offered to prove the character for lewdness of a witness summoned by the state, but who had not been examined at the time. Held, without intimating that such testimony was proper under any circumstances in a like case, that the offered testimony was entirely irrelevant and immaterial.

6. Every fact from which the jury may legitimately deduce innocence or guilt is proper to be submitted to them; and though the relevancy or materiality of a fact standing alone may not be apparent, yet when, taken in connection with other facts proven, its proper bearing appears, the jury should be allowed to consider it.

7. Under chapter 4400, Acts 1895, a defendant in a criminal case can voluntarily testify as other witnesses, under the rules governing witnesses generally, but cannot since said act make a sworn statement without the right of cross-examination by the state.

8. Rulings of the trial court refusing to give instructions asked must be excepted to at the time of refusal, and an exception to such rulings in a motion for new trial is too late.

9. It is not error for the trial court to omit to inform the jury that a majority of their number may recommend the accused to the mercy of the court.

10. In civil jurisprudence, when a man does a thing by permission of law, not by license, and, after proceeding lawfully part way abuses the permission given him, he may be deemed a trespasser from the beginning; but in criminal law such rule does not prevail, as no man is punishable criminally for what was not criminal when done, even though he afterwards adds either the act or the intent, yet not the two together.

COUNSEL

Martin L. Mershon, for plaintiff in error.

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

OPINION

MABRY J.

Writ of error from the Sixth judicial circuit for Hillsboro county, the conviction being for murder in the first degree. The indictment upon which plaintiff in error was arraigned and convicted contained two counts, reading, with usual beginning and the signature of prosecuting officer omitted, as follows:

'(1) That Thomas Milton, late of the county of Hillsborough aforesaid, in the county and state aforesaid, laborer, on the 12th day of February, in the year of our Lord one thousand eight hundred and ninety-six, with force and arms at and in the county of Hillsborough aforesaid, in and upon one Georgie McGraw, in the peace of God and the state of Florida, then and there being, feloniously, willfully, unlawfully, of his malice aforethought, and from a premeditated design to effect the death of her, the said Georgie McGraw, did make an assault; and that the said Thomas Milton, a certain pistol then and there loaded and charged with gunpowder and divers leaden bullets, with which said pistol loaded and charged as aforesaid he, the said Thomas Milton, was then and there armed, and in his right hand then and there held, to, against, and upon her, the said Georgie McGraw, then and there feloniously, willfully, unlawfully, of his malice aforethought, and from a premeditated design to effect the death of her, the said Georgie McGraw, did shoot and discharge; and that the said Thomas Milton, with the leaden bullets aforesaid out of the pistol aforesaid, then and there, by force of the gunpowder and bullets sent forth as aforesaid, upon the said Georgie McGraw, in and upon the body of the said Georgie McGraw, about one inch below the left breast of her, the said Georgie McGraw, then and there feloniously, willfully, unlawfully, of his malice aforethought, and from a premeditated design to effect the death of her, the said Georgie McGraw, did strike, penetrate, and wound, giving to her, the said Georgie McGraw, then and there, with the leaden bullets aforesaid, so as aforesaid shot, discharged, and sent forth out of the pistol aforesaid, by him the said Thomas Milton, in and upon the body of her, the said Georgie McGraw, about one inch below the left breast, one mortal wound, of the breadth of one inch and depth of six inches, of which said mortal wound she, the said Georgie McGraw, then and there, in the county of Hillsborough aforesaid, did languish, and languishing did live until the 29th day of March, in the year of our Lord one thousand eight hundred and ninety-six, upon which said last day she, the said Georgie McGraw, in the county of Hillsborough aforesaid, did die. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said Thomas Milton, her, the said Georgie McGraw, in manner and form aforesaid, feloniously, willfully, unlawfully, of his malice aforethought, and from a premeditated design to effect the death of her, the said Georgie McGraw, did kill and murder, against the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.

'(2) That Thomas Milton, late of the county aforesaid, in the circuit and state aforesaid, laborer, on the 12th day of February, in the year of our Lord one thousand eight hundred and ninety-six, with force and arms, at and in the county of Hillsborough aforesaid, in and upon one Robert Meacham, in the peace of God and the state of Florida, then and there being, feloniously, unlawfully, willfully, of his malice aforethought, and from a premeditated design to effect the death of him, the said Robert Meacham, an assault did make; and that the said Thomas Milton, a certain pistol then and there loaded and charged with gunpowder and divers leaden bullets, with which said pistol loaded and charged as aforesaid he, the said Thomas Milton, was then and there armed, and in his right hand then and there held, to, against and upon him, the said Robert Meacham, then and there unlawfully, feloniously, willfully, of his malice aforethought, and from a premeditated design to effect the death of him, the said Robert Meacham, did shoot and discharge; and that the said Thomas Milton, with the leaden bullets aforesaid, out of the pistol aforesaid, then and there, by the force of the gunpowder and the bullets sent forth as aforesaid upon one Georgie McGraw, in and upon the body of the said Georgie McGraw, about one inch below the left breast of her, the said Georgie McGraw, then and there unlawfully, feloniously, willfully, of his malice aforethought, and from a premeditated design to effect the death of the said Robert Meacham, did strike, wound, and penetrate her, the said Georgie McGraw, giving to her, the said Georgie McGraw, then and there, with the leaden bullets aforesaid, so shot forth and discharged out of the pistol aforesaid, by him, the said Thomas Milton, in and upon the body of her, the said Georgie McGraw, about one inch below the left breast of her, the said Georgie McGraw, one mortal wound, of the breadth of one inch, and of the depth of six inches, of which said mortal wound the said Georgie McGraw then and there, in the county of Hillsborough aforesaid, did languish, and languishing did live until the 29th day of March, in the year of our Lord one thousand eight hundred and ninety-six, upon which said last day, in the county of Hillsborough aforesaid, she, the said Georgie McGraw, did die. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said Thomas Milton, her, the said Georgie McGraw, in manner aforesaid, feloniously, willfully, unlawfully, of his malice aforethought, and from a premeditated design to effect the death of said Robert Meacham, did kill and murder, against the peace and dignity of the state of Florida.'

The sufficiency of the indictment was questioned by demurrer and motion in arrest of judgment, on the ground of a failure to allege that the death of the deceased was caused by the wound inflicted. The alleged defect in the indictment is in the latter part of both counts, where it is stated, immediately after the description of the wound, 'of which said mortal wound she, the said Georgie McGraw, then and there, in the county of Hillsborough...