Motley v. State

• Decision Date: 06 February 1945
• Citation: 155 Fla. 545,20 So.2d 798
• Parties: MOTLEY v. STATE.
• Court: Florida Supreme Court

20 So.2d 798

155 Fla. 545

MOTLEY v. STATE.

Florida Supreme Court

February 6, 1945

Appeal from Circuit Court, Pinellas County; John U Bird, judge.

Whitaker Brothers, of Tampa, for appellant.

J. Tom Watson, Atty. Gen., John C. Wynn, Asst. Atty. Gen., and Bourke Floyd, Sp. Asst. Atty. Gen., for appellee.

ADAMS, Justice.

This appeal is from a conviction of an assault with intent to commit murder in the second degree. The only question that merits a discussion is the sufficiency of the charge to the jury on the law of self defense.

Appellant went to see the victim of the shooting, one George O. Athorne, at the latter's home to talk to him about appellant's wife ceasing employment at the place where Athorne was manager. Nothing was said there except Athorne told appellant if he had business with him he could come to his office after 9 o'clock. Thereupon appellant proceeded to the office shortly after 9 o'clock. According to appellant he was parked in front of Athorne's office and upon the latter's approach he started to speak to him but Athorne looked as if he was 'mad enough to cut him in two' and he did not speak. Whereupon appellant took his pistol from his car and entered Athorne's office unannounced but pursuant to the aforesaid appointment, and found Athorne opening some letters. Appellant opened the conversation by telling Athorne he wanted him to discharge his wife as it was breaking up his home. Thereupon Athorne arose and started toward appellant, swinging his hands in a threatening manner saying, 'You damned crazy war veteran, I will beat the hell out of you'. Thereupon appellant said he backed up pulled the pistol from his pocket and fired to ward off the attack, but without intent to kill. He said he was infirm and no match for Athorne in physical combat.

The charge given on self defense reads: 'Now, gentlemen, as I get it from the testimony, the defendant contends that he fired the shot in self defense, and I charge you that if you should find in this case that the defendant was assaulted by the witness George Athorne, and that he used only such force as was necessary or as was reasonable--such force as a reasonable man would use under the circumstances to repel the assault, then he is justified in using such force as was necessary to repel the assault, even to the extent of taking human life. But I charge you, gentlemen, that if you find that the defendant in this case was the aggressor and brought about the circumstances and conditions under which necessitated his firing the shot, or shots, then he can not justify himself upon the ground of self-defense. An aggressor--that is one which is not reasonably free from fault--cannot bring about a difficulty and then act under his own compulsion and justify his acts on the ground of self defense.'

At the conclusion of the charge the court asked if there were further charges and appellant's attorney requested, 'If the Court please, I want to ask the Court to instruct the jury the legal meaning of assault.' To which the Court replied, 'Well, gentlemen, I suppose you gentlemen know what an assault is. It is a violation of a person's right. It is the violation of the rights of one person by another person. If the defendant shot the man, then that is assault, whether it is justifiable or not. Assault, gentlemen, is an intentional act of one person to do an injury to another. That is what assault is.'

It is urged that the charge was erroneous and misleading in that it limited the right of self defense to a case where appellant was assaulted; that it deprived him of the right where there was belief of imminent danger of great bodily harm.

The contention is made by the state: First, that the facts did not warrant a charge of self defense. Second, the evidence of guilt is overwhelming and the error, if any, was harmless. Third, the charge is free of error.

The...