Popps v. State

• Decision Date: 08 July 1935
• Citation: 120 Fla. 387,162 So. 701
• Parties: POPPS v. STATE.
• Court: Florida Supreme Court

162 So. 701

120 Fla. 387

POPPS v. STATE.

Florida Supreme Court

July 8, 1935

En Banc.

Error to Circuit Court, Broward County; G. W. Tedder, Judge.

J. S Popps was convicted of manslaughter, and he brings error.

Affirmed.

COUNSEL Roach & Hoyl, of Fort Lauderdale, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

DAVIS, Justice.

Plaintiff in error, Popps, was convicted of manslaughter upon an indictment charging murder in the first degree averred to have been unlawfully and feloniously committed upon the person of a man named Boyd. The issue at the trial was self-defense, the accused, Popps, claiming that Boyd, the alleged murdered man, was coming on him in a hostile attitude, and armed with a deadly weapon in the form of a stick, at the time he was shot by defendant four or five times and thereby killed. From a seven years' sentence to the State Prison, Popps has prosecuted this writ of error to the Supreme Court.

There is ample testimony in the record from which the jury could have found the defendant guilty of unlawful homicide of a higher degree than manslaughter, as specified in the jury's verdict, which underlies and supports the judgment of conviction and sentence thereon. So it is no objection to the judgment, as a matter of law, that the evidence in the court below did not exactly make out the crime of manslaughter if it did make out some other different and higher degree of unlawful homicide comprehended within the charge laid in the indictment. Such has been the declared law of this state at least as far back as Brown v State, 31 Fla. 207, 12 So. 640, (5th headnote), decided in 1893, which holding has been consistently followed in Florida since that time.

Under section 7145, C. G. L., section 5043, R. G. S., a plainly unnecessary killing, even in defending one's self against an unlawful personal attack being made by the person slain may be deemed manslaughter, where a plea of justifiable homicide under paragraph (1), § 7135, C. G. L., section 5033, R. G. S. is interposed as justification, but such defense is not sufficiently supported to constitute an absolute bar to conviction, as in cases where the resultant homicide cannot be held justifiable under paragraph (1), § 7135, C. G. L., supra.

The scene of the homicide involved in this case was the main highway in the town of Deerfield in Broward County. Just before Boyd was shot by defendant, it appears that he was driving a truck, accompanied by one Raymond Harris, a state's witness. Defendant, Popps, driving in another truck in the same direction, stopped his own truck, got out and called to Boyd, demanding that the latter respond for a verbal controversy. There is little doubt, if witness Harris is to be believed (as he evidently was believed by the jury) that Popps, whatever the merits of his grievance may have been, deliberately sought to start a personal difficulty with Boyd, which caused Boyd to forthwith arm himself with a small stick about two feet long, which Popps claimed he was defending himself against when he shot Boyd and killed him. Popps, for some reason not satisfactorily explained, had gone out on his truck that day armed with a pistol and had by his own voluntary hostile advance on Boyd in the first instance, provoked the counter arming on the part of Boyd, who employed a mere stick for the purpose....