Pittman v. State

• Court: Florida Supreme Court
• Writing for the Court: WEST, J.
• Citation: Pittman v. State, 89 So. 336, 82 Fla. 24 (Fla. 1921)
• Decision Date: 23 June 1921
• Parties: PITTMAN v. STATE.

89 So. 336

82 Fla. 24

PITTMAN v. STATE.

Florida Supreme Court

June 23, 1921

Error to Circuit Court, Jackson County; C. L. Wilson, Judge.

Joe Pittman was convicted of murder in the second degree, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Modification of requested instruction making it conform to facts not error. To so modify a requested instruction as to make it accord with the facts in proof is not error.

Refusal of requested instruction covered by general charge not error. It is not error to refuse to give requested instructions upon points of law covered by the general charge.

Evidence sustaining conviction of murder in the second degree. Evidence examined and found sufficient to support the conviction of murder in the second degree.

COUNSEL

W. E. B. Smith, of Marianna, for plaintiff in error.

Rivers H. Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen for the State.

OPINION

WEST J.

The grand jury impaneled in Jackson county at a regular term of the circuit court returned an indictment against the defendant charging him with murder in the first degree. Upon a trial he was found guilty of murder in the second degree. Motion for new trial was made and denied. The statutory penalty for such offense was imposed. From the judgment imposing sentence writ of error was taken from this court.

There are two assignments of error. The first questions the propriety of the refusal of the trial judge to give an instruction on behalf of defendant to the jury in the form prepared by his counsel and the giving of the instruction after modifying and amending it. The charge as given, with the words inserted by the court italicized, is as follows:

'In arriving at your verdict and in determining whether or not defendant was justifiable in his act, you may take into consideration whether or not deceased had threatened defendant, which threats had been communicated to him or made to him, and whether or not defendant, acting as a reasonable, prudent, and cautious man would have acted under similar circumstances, had reason to believe he himself was in danger of great bodily harm at the hands of the deceased.'

The purpose of this instruction was to submit to the jury the question of whether or not defendant acted as a reasonably prudent and cautious man would have acted under similar circumstances and to point out to them that in their deliberations upon this question defendant was entitled to have them take into consideration the fact of threats alleged to have been made against him by the deceased.

The fact that deceased had threatened the life of defendant was proved. That such threats had been communicated to defendant before the homicide was testified to by defendant himself. There was no dispute upon the point of whether threats were made or whether such threats had been communicated to defendant. How the alleged threats of the deceased could have affected the conduct of defendant without having been communicated to him is not suggested, and it would seem that it could not reasonably be urged that an uncommunicated threat would have influenced defendant's action. To so qualify a requested instruction as to make it...