Olds v. State

• Decision Date: 30 September 1902
• Citation: 44 Fla. 452,33 So. 296
• Parties: OLDS v. STATE.
• Court: Florida Supreme Court

33 So. 296

44 Fla. 452

OLDS v. STATE.

Florida Supreme Court

September 30, 1902

Error to circuit court, Jackson county; Lucius J. Reeves, Judge.

Henry Olds was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. A motion to quash an indictment because of alleged defects therein must be exhibited by the record proper, and cannot be considered by the appellate court when shown only by the bill of exceptions.

2. It is not error for the trial court to refuse to instruct the jury that the good character of the defendant among his neighbors is of value, especially in doubtful cases; and, if they believe from the evidence that the defendant bears a good character in the community in which he lives, they might consider such character in connection with all the other evidence in the case; and, if the evidence in regard to character raises a reasonable doubt in their minds as to the guilt of the defendant, then they should find him not guilty.

3. The proper way to instruct the jury, when evidence of good character is produced, is that such evidence must be considered in connection with all the other evidence in the case, and, when considered as a whole, if the evidence raises a reasonable doubt of guilt, there should be an acquittal.

4. A charge that is not entirely accurate, but favorable to the accused, and in no way prejudicial to him, is no ground for a reversal of the judgment.

5. An intentional killing may not be murder in the first degree when done in the heat of passion or anger, and following a sufficient provocation so close in time as to raise the presumption that it was the result of sudden impulse, and without premeditation, or when committed under such circumstances as to show that the mind was not fully conscious of its own intentions.

6. There is on prejudicial error to an accused in an instruction to the jury on a charge of murder in the first degree that the fact that the defendant may have been, at the time of the killing, under the influence of anger or resentment, would not of itself be sufficient to preclude the idea of premeditation, unless the degree of feeling was such as to cloud the senses of the accused, or to impair his reason, and not then if, subsequently to forming the design and before executing it, sufficient time elapsed for an ordinarily reasonable man to have regained his self-possession; nor would such anger be sufficient to exclude the idea of premeditation if there was not such provocation for it as would be calculated to excite such anger or passion as might obscure the reason of an ordinarily reasonable man in the same situation and under the same circumstances; and mere words, no matter how insulting or abusive, would not be sufficient provocation, unconnected with any acts or other circumstances calculated to excite anger or passion of a reasonable man.

7. It is not error, in defining the right of self-defense or justifiable homicide, in acting on the belief of danger, to instruct the jury that, unless such belief of danger is reasonable,--that is, unless a reasonably cautious and prudent man would entertain the same belief from the same appearances,--it would be no defense, even though it was an honest belief of danger.

8. A witness for the state testified to acts and declarations of the accused and the deceased at the time of the killing, and impeaching witnesses for the defense testified that the state witness made statements after the killing in conflict with the testimony given for the state, and indicating that the occurrences at the time of the killing were different from those stated by the witness on the stand. Held, it was not error for the court to instruct the jury that they could not consider the testimony of the impeaching witnesses for the purpose of determining the manner and cause of the death of deceased, or what the acts of either the deceased or accused were on that occasion, except so far as the credibility of the state witness might bear on such questions, and the only purpose for which they could consider such impeaching testimony was to determine the truth or falsity of the testimony of the state witness,--whether it was worthy of belief.

COUNSEL

C. L. Wilson, for plaintiff in error.

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

OPINION

MABRY, J.

Plaintiff in error was indicted for murder, and was convicted of the crime charged, with a recommendation of mercy.

The first error assigned on the writ of error to the judgment of the court is that the motion of defendant below to quash the indictment was improperly overruled. The only evidence in the transcript that such a motion was made is contained in a recital in the bill of exceptions to the effect that the motion was made on enumerated grounds questioning the sufficiency of the indictment. The rule of practice in this court is that a motion to quash an indictment, or in arrest of judgment, on the ground of the insufficiency of the indictment, must be exhibited by the record proper, and cannot be considered when shown only by the bill of exceptions. Caldwell v. State, 43 Fla. ----, 30 So 814, and cases therein cited. The first assignment of error cannot, therefore, be sustained.

The court instructed the jury that there was evidence before them of good character of the accused, and that they would give to it such weight as they thought it entitled to, and, if it raised in their minds a reasonable doubt as to the guilt of the accused, he would be entitled to the benefit of the doubt. This was excepted to by the accused.

The court refused, at the request of defendant, to instruct the jury that: 'The good character of a defendant among his neighbors in a community in which he resides is of value especially in doubtful cases; and if you believe from the evidence in this case that defendant bears a good character or reputation in the community in which he lives, you may consider such character in connection with all the other evidence in the case, and, if the evidence in regard to his character raises a reasonable doubt in your minds as to the guilt of the defendant, then you will find the defendant not guilty.' The refusal was excepted to and the two exceptions constitute the second and fifth assignments of error. The case of Bacon v. State, 22 Fla. 51, is cited to support the assignments. In that case the court instructed the jury that the defendants had the right to put in evidence their good character, and it should be considered by the jury in connection with the other evidence from which they were to determine their verdict, and that the evidence of character should have such weight, in connection with all the other evidence as the jury believed it entitled to. There was no exception to the charge, and no question raised as to whether it would be error for the court to decline to charge specially on the evidence of character. In passing upon the sufficiency of the evidence to sustain the verdict, this court approved the charge given, and held that good character of a defendant among his neighbors in the community in which he resides is of value, especially in doubtful cases, and sometimes will create a doubt, when, without it, none would exist; that such evidence, however, was intended for the consideration of the jury, and it was for them alone to determine whether, when considered with the other evidence in the case, it created a reasonable doubt as to the defendant's guilt. In the case of Mitchell v. State, 43 Fla. ----, 30 So. 803, it was held that proof of good character did not, as matter of law, raise a reasonable doubt of guilt, but such testimony was to be considered by the jury like other testimony in the case. In Langford v. State, 33 Fla. 233, 14 So. 815, the court instructed the jury on the subject of good character substantially the same as in the Bacon Case, and the defendant requested an instruction containing in part an incorrect principle as a guide for the jury in arriving at a verdict; and this court held that the charge requested was correctly refused, not only because of the incorrect principle announced, but because it was not a charge upon the law of the case. In commenting upon cases cited in support of this conclusion at was said they announced the view that instructions telling the jury then might look to this fact, or may consider that fact, or are authorized to infer certain formulated conclusions from the evidence, and especially from certain specified parts of it, had often been condemned, and should never be given, although either the giving or the refusal of such instructions may not be reversible error. The effect of the decision in the Langford Case appears to be that the court is not required to single out specially the part of the evidence relating to character and instruct on it, though according to our past rulings the court may do so if it sees proper. The proper way, however, is to instruct the jury that the evidence of good character must be considered in connection with all the other evidence in the case, and, when considered as a whole, if the evidence raises a reasonable doubt as to guilt, they should acquit. The instruction requested by defendant informed the jury that they might consider the evidence of good character in connection with all the other evidence in the case, but it is distinctly stated therein that, if the evidence in regard to character raised a reasonable doubt as to guilt, the defendant should be acquitted. This was incorrect. Scott v. State (Ala.) 32 So. 623. Under the ruling in the Langford Case we hold further that it is not error for the court to refuse to single out the subject of good character, and instruct on it, as distinguished from the other evidence in the case. See Watkins v....