Peterson v. State

• Decision Date: 16 May 1899
• Citation: 26 So. 709,41 Fla. 285
• Parties: PETERSON v. STATE.
• Court: Florida Supreme Court

26 So. 709

41 Fla. 285

PETERSON v. STATE.

Florida Supreme Court

May 16, 1899

Error to circuit court, Franklin county; John W. Malone, Judge.

Daniel Peterson was convicted of assault with intent to murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where an indictment charges an assault with a named weapon without designating the manner of its use, it is the proper function of evidence to supply the particulars by pointing out the specific manner in which the weapon was used to accomplish the alleged assault.

2. Where an indictment charges that an assault was committed with a pistol, but does not state the manner in which it was used. nor the it was loaded, nor that defendant discharged or attempted to discharge, it, evidence tending to show that the pistol was loaded, and that the assault was committed by discharging it at the person assaulted, is properly admissible.

3. Evidence examined, and found sufficient to support the verdict.

COUNSEL W. B. Sheppard and Geo. P. Raney, for plaintiff in error.

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

OPINION

CARTER J.

In October, 1898, the plaintiff in error was indicted, tried and convicted for an assault with intent to murder. The indictment charged that the defendant, in and upon one C. W Marks, with a certain deadly weapon, to wit, a pistol, with which he was armed, and in one of his hands had and held, feloniously, and from a premeditated design to effect the death of Marks, an assault did make, with the intent and premeditated design him, the said Marks, with the pistol so had and held as aforesaid, feloniously, and from a premeditated design to effect the death of Marks, him, the said Marks, to kill and murder. The indictment did not state the manner in which the pistol was used, nor that it was loaded, nor that defendant discharged, or attempted to discharge, it.

From the state's evidence it appears that on September 22, 1898, Marks was master of the steamer Owens, a vessel plying the Appalachicola river, and bound from Appalachicola to Chattahoochee. The vessel left Appalachicola about 6:30 p. m., and arrived at Brickyard landing about 10 o'clock, where she stopped to put off passengers and freight. Defendant was engaged in logging, and on this occasion he, with other raftsmen, were passengers on the steamer, destined for Brickyard landing. After the vessel had discharged her freight and passengers at this landing, she backed out into the river and started on her way. Marks was standing on the hurricane deck just forward the smokestacks, while two or three other persons were on the same deck, but back of the smokestacks. When the vessel had reached a distance of 40 or 45 yards from the landing, the defendant, from the shore, exclaimed that his snubline had not been put off, and that it should not be carried away. He hallooed to the vessel's stevedore to bring off the line, and the latter replied that he knew nothing about it. Defendant said the boat should not carry off the line, and by God he would make it come back. He then ran 25 or 30 feet to the warehouse porch, where there was some plunder, and came back with a revolver, which he fired once in the direction of the boat, and twice up the river ahead of the boat, and hallooed to the stevedore to take care of his line, and put it off on the return trip. Defendant and others on shore then fired their pistols in the air. About the time he fired in the direction of the boat, one of the witnesses told him not to do that, he would get into trouble; but defendant replied they were carrying off his line, and that they had to bring it back. The boat did not stop, but proceeded on her way, and the next morning one of the officers picked up a flattened ball, size about 3, caliber, which had struck the smokestack, leaving a mark where it struck. Judging from the mark on the smokestack, the bullet must have passed within a foot of where Marks was standing at the time of the shooting the night before, and, if he had been in range of the ball, it would have struck him in or near the stomach. It was not an uncommon thing for raftsmen to fire off their pistols when leaving the boat along this river, and no one on the boat paid any attention to the shooting at the time it occurred, or supposed that the boat had been shot into, until next morning, when the bullet was found. Marks had never had a difficulty with defendant; in fact, had never seen him to know him until some time after the shooting. Defendant expressed no ill will against Marks or any other person at the time of the shooting, other than can be implied from the language quoted above. Those who witnessed the shooting saw defendant point the pistol in the direction of the boat and discharge it, but they could not say that he pointed in the direction of Marks or any person in particular, nor could they say that defendant knew that Marks was master of the vessel, or that he was standing on the hurricane deck at the time of the shooting. The movements of the boat were, however, subject to the order of Marks as master, and it would not have stopped or made the landing again without his order.

The defendant offered no testimony in his behalf. He objected to all evidence relating to his firing the pistol, on the ground that the indictment failed to allege that it was loaded, or that the manner of its use in making the assault was by shooting, but the court overruled the objection, to which an exception was taken. The defendant moved for a new trial, insisting that the verdict was contrary to the law and the charge of the court, and not sustained by the evidence, which was also overruled. There was no motion to quash the indictment, nor in arrest to judgment, because of its insufficiency, nor is the charge of...