Pell v. State

Decision Date30 April 1929
Citation97 Fla. 650,122 So. 110
PartiesPELL v. STATE.
CourtFlorida Supreme Court
En Banc.

Error to Circuit Court, Volusia County; M. G. Rowe, Judge.

Eddie Pell was convicted of murder in the second degree, and he brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Indictment for murder, charging that defendant with premeditated design to effect death killed certain person, held sufficient as against motion in arrest (Comp. Gen. Laws 1927, §§ 7137 8368, 8369). Indictment for murder, as defined in Comp. Gen Laws 1927, § 7137 (Rev. Gen. St. 1920, § 5035), charging that defendant on certain day 'unlawfully and with a premeditated design to effect death, did kill' certain person by shooting him with shotgun, held sufficient as against motion in arrest under sections 8368, 8369 (Rev. Gen St. 1920, §§ 6063, 6064), though it might have been improved upon by specifically charging that premeditated design was to effect death of person killed.

Court's discussion not essential to decision is without force as precedent. That part of court's opinion which is not essential to decision of case is mere obiter dictum and without force as precedent.

Law presumes man intends to do what he actually does. In prosecution for crime, law presumes that man intends to do what he actually does.

On motion in arrest for defects in indictment, indictment should receive liberal construction. On motion in arrest for defects in indictments or informations, rule is that indictment should receive liberal construction, and that even informal or imperfect allegation of essential fact will be deemed sufficient.

In murder case, refusal to permit argument by defendant's counsel, relative to state's failure to have contents of barrel of deceased's pistol analyzed, held not error, in view of trial court's discretion. In prosecution for murder, refusal to permit argument by defendant's counsel as to state's failure to have contents of inside of barrel of deceased's pistol analyzed held not error, in view of discretion vested in trial judge, which is rarely abused, though it was opinion of reviewing court that such argument was not improper.

State's attorney must endeavor to get at real facts whether they lead to conviction or acquittal. State's attorney occupies semijudicial position, and it is his duty to endeavor to get at real facts whether they lead to conviction or acquittal.

Reversal will not be predicated on error in rulings on argument to jury, unless ruling is clearly prejudicial. Reversal will not be predicated on error in permitting or refusing to permit argument to jury, unless ruling is clearly erroneous and prejudicial, since mistake is inevitable now and then in making prompt ruling on border-line argument.

Search warrant not conforming strictly to statutory requirements is void. Search warrant must conform strictly to requirements of statute under which it is issued, or it is void.

In prosecution for murder of one making search under invalid warrant, such warrant, if admissible, called for instruction that it was admitted only to show deceased's purpose in entering defendant's premises (Comp. Gen. Laws 1927,§ 8513). In prosecution for murder of officer attempting to search defendant's premises under search warrant not issued in duplicate, as required by Comp. Gen. Laws 1927, § 8513 (Acts 1923, c. 9321, § 11), such warrant, if admissible called for instruction that it was admitted only to show purpose of deceased in going on defendant's premises, and not for showing any justification for such action.

In murder case, defendants having introduced evidence that deceased used profanity cannot object to state's rebuttal evidence that deceased did not profane language. In prosecution for murder, defendants, after having elicited testimony that deceased had been in habit of using profanity, held not in position to object to testimony of state's witnesses on rebuttal that deceased was not in habit of using profane language.

In prosecution for murder, which occurred on defendant's premises, self-defense charge should cover proposition that one assaulted on his own premises need not retreat. In prosecution for murder, in which difficulty occurred on defendant's own premises upon which deceased had entered under invalid search warrant, charge on self-defense should have covered proposition that person, if not aggressor, violently assaulted on his own premises, is not obliged to retreat in order to avoid difficulty, and may use such force as appears necessary to him as cautious and prudent man to save his life or save himself from grievous bodily harm.

COUNSEL

Thomas Palmer, W. B. Dickenson, E. T. Shurley, and Paul Lake, all of Tampa, Carey D. Landis, of De Land, and Leonardy & Leonardy, of Sanford, for plaintiff in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BROWN, J.

The writ of error in this case is to a judgment of the circuit court of Volusia county convicting the plaintiff in error of murder in the second degree. There was a motion in arrest of judgment in which the validity of the indictment was challenged. Murder in the first degree is defined by our statute in the following language:

'The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary, shall be murder in the first degree, and shall be punishable by death.' Section 7137, Comp. Gen. Laws; section 5035, Rev. Gen. Stats.

The indictment, eliminating the statement of venue and style of the case, was as follows:

'The Grand Jurors of the State of Florida, empaneled and sworn to inquire and true presentment make, in and for the body of the County of Volusia, upon their oaths do present, that Eddie Pell of the County of Volusia and State of Florida, on the 8th day of July in the year of our Lord, One Thousand, Nine Hundred and Twenty-seven, in the County and State aforesaid, unlawfully and with a premeditated design to effect death, did kill D. E. Walker, by shooting him with a shot gun; and that the said Raymond Pell, with a premeditated design to effect death, was then and there present, aiding, abetting, comforting, procuring, encouraging, counselling and commanding the said Eddie Pell, the murder aforesaid, to do and commit, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Florida.'

That part of the indictment in this case which charges Raymond Pell as a principal in the second degree, may be eliminated from consideration, as he was acquitted, and Eddie Pell, who was charged as principal in the first degree, and convicted, is the sole plaintiff in error here. Eliminating that portion applying to Raymond Pell, the indictment in this case follows quite closely the form suggested in the opinion in Reed v. State, 94 Fla. 32, 45, 113 So. 630, 635. While this suggestion was more or less apposite to the point being discussed, it was not essential to the decision in that case, and hence mere obiter dictum and without force as a precedent. However, inasmuch as the opinion in that case was concurred in by all the justices, without dissent, it is quite probable that the state attorney felt thereby justified in following the form of indictment therein suggested.

As against the objections made in the motion in arrest in this case, we think that the form of indictment used here was entirely sufficient, and constitutes a decided improvement over the ancient ponderous common-law form.

This form, as well as the one suggested in the Reed Case, might have been improved upon, and more meticulously accurate, if the charging part had read as follows:

'That Eddie Pell, on the 8th day of July, A. D. 1927, in the county and State aforesaid, unlawfully and from a premeditated design to effect the death of D. E. Walker, did kill said D. E. Walker by shooting him with a shot gun,' etc., but, for the reasons hereinafter given, we deem the indictment as written good as against a motion in arrest.

The contention of plaintiff in error, as we take it, is to the effect that this form is sufficient except in one particular, and that is the omission of the words, 'of said D. E. Walker,' the person killed, after the words 'premeditated design to effect death.' But is not the meaning of the indictment perfectly plain, with these words omitted? We think so.

Under our statute, 'the unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being,' is murder in the first degree.

The indictment in this case charged that the defendant, on a certain date and in the named county, 'unlawfully and with a premeditated design to effect death, did kill D. E. Walker, by shooting him with a shot gun--contrary to the form of the statute in such case made and provided,' etc.

The writer is disposed to think this indictment would have been sufficient as against the motion in arrest of judgment, even if the words, 'to effect death,' had been omitted, so that the charging part would have read: 'Unlawfully and with a premeditated design, did kill D. E. Walker by shooting him with a shot gun, contrary to the form of the statute,' etc. In either manner of statement there cannot possibly be any reasonable doubt, under the ordinary rules of legal and grammatical construction, as to just what the indictment charges and means. The law presumes that a man intends to do what he actually does. So, as the indictment charges that the defendant killed the deceased by shooting him with a gun, the presumption is that he...

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41 cases
  • Weiand v. State
    • United States
    • Florida Supreme Court
    • 11 Marzo 1999
    ..."to the wall," which applies when an individual claims self-defense in his or her own residence. See id. at 827; Pell v. State, 97 Fla. 650, 665, 122 So. 110, 116 (1929); Danford v. State, 53 Fla. 4, 13, 43 So. 593, 597 (1907). An individual is not required to retreat from the residence bef......
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    ...it did not, and it reversed the conviction and remanded with directions to discharge Bobbitt. In our early decision of Pell v. State, 97 Fla. 650, 122 So. 110 (1929), we held that where one is not the aggressor and is violently assaulted on his own premises by a trespasser, he is not oblige......
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