Morrison v. State
| Decision Date | 13 April 1900 |
| Citation | 28 So. 97,42 Fla. 149 |
| Parties | MORRISON v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Holmes county; Evelyn C. Maxwell, Judge.
Bill Morrison was convicted of murder in the second degree, and brings error. Affirmed.
Syllabus by the Court
1. Section 2920, Rev. St., provides that the charges of the court to the jury in capital cases shall be wholly in writing, and section 1091, Rev. St., provides that such charges shall be signed by the judge, and be by him filed in the case immediately after delivery or refusal, and form part of the record in the case. When charges are given and filed in compliance with these provisions of law, they become a part of the record in the particular case in which they are given, and trial judges should not withdraw them from the record of the case of which they form a part, and make them by refiling and interlineations, a part of the record of another, different, and subsequent case.
2. Charges in writing should be given literally as they are written.
3. Exceptions to the form or manner in which charges are given should be seasonably made, at least before the rendition of the verdict; otherwise, objections thereto will be held to have been waived.
4. Where a mortally wounded party, under a full appreciation of his condition, with a full belief in the certainty of his imminently impending death, and without hope of recovery makes several complete statements, at different times, of the transaction in which he received his wounds, any one or all of such complete statements are admissible in evidence, and the state is not confined to any particular one of them; nor is it necessary to offer all of the separate and distinct statements, made at different times, in order to render other distinct declarations, made at other times, admissible in evidence. Should any of such several declarations be inconsistent or contradictory to others made by the declarant, it is open to the defense to show the fact, and the burden is upon the defense to show it if it exists.
5. The following charge: 'In considering and weighing the evidence you should use the same judgment, reason, common sense, and general knowledge of men and affairs as you have in everyday life,'--held to be proper.
6. The appearance of impending imminent danger to one's life or limb must be such as would actuate a reasonable, cautious and prudent man, before it can excuse the giving of a mortal blow in self-defense.
7. A verdict convicting of murder in the second degree will not be set aside on the ground that the evidence does not make out that degree of the crime in terms as defined by the statute, if the evidence in the case would have supported a finding of murder in the first degree.
8. An indictment containing a single count charging murder in the first degree also contains a charge of murder in the second degree.
9. The majority of the court hold the evidence sufficient to sustain the conviction.
COUNSEL D. L. McKinnon, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
Under an indictment found in November, 1897, charging the plaintiff in error, jointly with three other parties, with murder in the first degree, the plaintiff in error was separately tried, and convicted of murder in the second degree, in May, 1899, in the circuit court of Holmes county, sentenced to life imprisonment, and takes writ of error.
The errors assigned are as follows:
(1) The court erred in overruling the defendant's motion for a new trial, on the various grounds mentioned therein.
(2) The court erred in denying the motion of the defendant in arrest of judgment.
The motion for new trial was upon the following grounds:
(1) The verdict is contrary to law, the evidence, and charge of the court.
(2) The verdict is against the weight of the evidence.
(3) The verdict is unsupported by the evidence, and without evidence to support it.
(4) The court erred in excusing two jurors for cause upon the challenge of the state for cause.
(5) The charge of the court was contrary to law.
(6) The court erred in refusing to give the special charges requested by the defendant, numbered 1 and 3, and qualifying special charge 2.
(7) The court erred in not reducing to writing and filing the charge delivered to the jury, as required by the statute.
(8) The court erred in permitting in evidence what purported to be a dying statement of deceased, as there was no evidence that the deceased believed himself beyond recovery, and because the evidence showed that there was a previous statement made by the deceased, which was not produced.
(9) The court erred in charging the jury as follows: 'In considering and weighing the evidence, you have and should use the same judgment, reason, common sense, and general knowledge of men and affairs as you have in everyday life.'
(10) The court erred in charging the jury as follows:
The first, second, and third of these grounds we will discuss last.
The fourth and fifth grounds have been abandoned here.
The sixth assignment involves the refusal to give, as requested, two instructions, and an alleged modification of a third instruction requested. As to the instruction alleged to have been modified from the form in which it was requested, before being given by the court, there is nothing in the record to show that any change or modification was made by the judge in any requested instruction before giving same; therefore, this phase of the assignment must fail for the want of facts to make it appear. In respect to the two instructions requested and refused, we find that the propositions announced in each of them had already been given in substance to the jury in other instructions, and there was therefore no error in their refusal. Bryant v. State, 34 Fla. 291, 16 So. 177; Sherman v. State, 17 Fla. 888; Carter v. State. 22 Fla. 553; Killins v. State, 28 Fla. 313, 9 So. 711; Reddick v. State, 25 Fla. 112, 5 So. 704.
The seventh ground of the motion for new trial, to the effect that the court erred in not reducing to writing and filing the charge delivered to the jury, as required by the statute is predicated upon the following state of facts, as evidenced to us by the original charges sent here for our inspection by special order of the circuit judge: The judge, instead of writing out the charges in full, and filing them in the record in this case, after having read them as written, simply took the charges from the files in another case for murder, that had been tried a year or two previously in the same court, and, after adapting them to this case, by interlineations of the differing names of the deceased and of the defendant, read such charges to the jury, and then had them refiled as part of the record in this case. Section 2920, Rev. St., provides that 'the rules of law relative to instructions and to the charge of the court in civil cases shall obtain in all criminal cases, except as to the charge in capital cases, which shall be wholly in writing and upon the law of the case only.' And section 1091, Rev. St., provides that all instructions, as well those given as those denied, shall be signed by the judge, and be by him filed in the case immediately after delivery or refusal, and form a part of the record in the case. When charges are given and filed in compliance with these provisions of the law, they become a part of the record in the particular case in which they are given, and circuit judges should not withdraw them from the record of the case of which they form a part, and make them, by refiling and interlineations, a part of the record of another, different, and subsequent case. The records of cases adjudicated in courts of record are designed by the law to be permanent evidences of the particular matters to which they speak, and the judges of such courts have no right unnecessarily to break up the continuity of the record in one case by unnecessarily withdrawing a portion of such record, and making it a part of the record in a wholly different and subsequent case, as appears to have been done in this case. But, again, the charges here given were borrowed from a former case, wherein one Padgett was the defendant on trial for murder, and wherein one Henderson was the party killed. The borrowed charges made frequent mention of both of these names, and in adapting them to this case the judge very properly did not mutilate them by actually erasing such names, but left them in the charges wherever they occurred, but interlined over them, throughout, the names, respectively, of the defendant and the deceased in this case, so as to adapt them to this case. Our statute requires the whole charge in capital cases to be in writing, and we think the correct rule is that it should be given literally as it is written. Dixon v. State, 13 Fla. 636; Turnpike Co. v. Conway, 7 Ind. 187. Suppose, in the present case, the latter rule had been observed, and these borrowed charges had been given literally as they were written; we would have had the anomaly of a set of instructions making repeated reference to two differently named individuals as defendant, one of whom was in no way connected with the case, and to two...
To continue reading
Request your trial
-
Young v. State
...v. State, 64 Fla. 64, 59 So. 395; Stafford v. State, 50 Fla. 134, 39 So. 106; Snelling v. State, 49 Fla. 34, 37 So. 917; Morrison v. State, 42 Fla. 149, 28 So. 97; Smith v. State, 25 Fla. 517, 6 So. 482; Alvarez v. State, 41 Fla. 532, 27 So. 40; Olds v. State, 44 Fla. 452, 33 So. 296; Pinde......
-
Cross v. Aby
... ... the trial court, and only such of those grounds will be ... considered by this court as are argued before it. Pittman ... v. State, 51 Fla. 94, 41 So. 385, 8 L. R. A. (N. S.) ... 509, and authorities therein cited; Seaboard Air Line R ... Co. v. Searborough, 52 Fla. 425, 42 ... what was there said, the authorities there cited, and the ... reasoning employed in them. Also see Morrison v ... State, 42 Fla. 149, 28 So. 97, and Marshall v ... State, 54 Fla. ----, 44 So. 742. We would further add ... that, after a most careful ... ...
-
Sylvester v. State
...state is that the defendant must believe upon grounds that would induce a reasonable, prudent, and cautious man to believe. Morrison v. State, 42 Fla. 149, 28 So. 97. And Lane's Case we held that evidence as to defendant's actual belief is not admissible unless and until reasonable ground--......
-
Lane v. State
...from great personal injury. Smith v. State, 25 Fla. 517, 6 So. 482; Pinder v. Same, 27 Fla. 370, 8 So. 837, 26 Am. St. Rep. 75; Morrison v. Same, 42 Fla. 149, 28 97. The belief of the accused as to the apparent necessity to kill in order to save his own life or to protect himself from great......