Powell v. State

• Decision Date: 05 April 1927
• Citation: 93 Fla. 756,112 So. 608
• Parties: POWELL v. STATE.
• Court: Florida Supreme Court

112 So. 608

93 Fla. 756

POWELL v. STATE.

Florida Supreme Court

April 5, 1927

En Banc.

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Mark C Powell was convicted of first degree murder, he brings error.

Affirmed.

Terrell and Brown, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Whether premeditated design to kill was formed by accused must be determined by jury from evidence and circumstances. Whether premeditated design to kill was formed by the accused must be determined by the jury from all the legal evidence and circumstances of the case.

Appellate court will not grant new trial because verdict, based on conflicting evidence amply supporting it, was contrary to evidence or weight thereof if is accords with law. Where there is a conflict in the evidence, but there is ample testimony to sustain the facts, the appellate court will not grant a new trial on the ground that the verdict was contrary to the evidence, or to the weight of the evidence, when the verdict is in accordance with the law in the case.

Counsel for both state and defendant should confine themselves to record in argument; generally, counsels' going beyond record in argument does not require new trial, unless they may have misled or aroused passion or prejudice of jury. Counsel both for the state and for the defense should confine themselves to the record in the argument of criminal as well as civil cases. This is a rule, however, which is often violated, and it is not the policy of courts to grant new trials because of such violations, unless it appears that the passions or prejudices of a jury may have been aroused thereby, or that the jury may have been misled and caused to base their verdict upon some matter outside of the evidence.

Counsel's objectionable statements to jury, cautioned by court to disregard them, does not authorize new trial. A new trial will not be granted on the ground that counsel made objectionable statements to the jury, if the jury were cautioned by the court to disregard them.

Single charge should be considered in connection with other charges bearing on same subject; if single charge considered with others appears correct, giving it is not error unless it was calculated to confuse, mislead, or prejudice jury. In passing upon a single instruction or charge it should be considered in connection with all the other instructions and charges bearing on the same subject; and if when thus considered the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction or charge must fail, unless under all the peculiar circumstances of the case the court is of the opinion that such instruction of charge was calculated to confuse, mislead, or prejudice the jury.

Where general charge covered law of self-defense, enabling jury to apply it, refusal of other instructions thereon was not reversible error. Where the general charge of the trial judge convered the law of self-defense in such form as to enable the jury to apply the law to the facts in the case, the refusal of the trial judge to give several other instructions upon self-defense is not reversible error.

COUNSEL

Wm. A. Hallowes, Jr., and Miles W. Lewis, both of Jacksonville, for plaintiff in error.

J. B Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD J.

The plaintiff in error, Powell, was convicted in the circuit court of Duval county of the offense of murder in the first degree with a recommendation for mercy and was sentenced to serve the period of his natural life in the state prison from which judgment he sued out writ of error.

The assignments of error are as follows:

'(1) The court erred in refusing to grant the motion of the defendant in the case, the plaintiff in error herein, to set aside the verdict in this case and to grant the plaintiff in error a new trial.

'(2) The court erred in refusing to grant the motion for a new trial, because and upon the ground that there is no sufficient evidence of premeditation in the case.

'(3) The court erred in refusing to grant the motion of plaintiff in error to grant a new trial because and upon the ground that the evidence in this case shown that not sufficient time had elapsed between the fight on the east side of Main street, Jacksonville, Fla., and the homicide on the west side of Main street, to constitute what is termed cooling time, and at the most the evidence can only support and sustain a verdict of manslaughter.

'(4) The court erred in refusing to grant the motion of the plaintiff in error for a new trial because and upon the ground that there is no evidence to support the verdict.

'(5) The court erred in refusing to grant the motion of the defendant for a new trial upon the ground and because the evidence is insufficient to support the verdict.

'(6) The court erred in refusing to grant the motion of the defendant for a new trial upon the ground and because the verdict is contrary to law.

'(7) The court erred in refusing to grant the motion of the plaintiff in error for a new trial upon the ground and because the verdict is contrary to the evidence.

'(8) The court erred in admitting the evidence of Mrs. Bernard South as to conversation of Mr. W. T. Cowles, Sr., over telephone with a person not identified as follows:

"Q. Who was talking? A. Mr. Cowles was talking over the telephone.

"Q. Just state what Mr. Cowles said.'

'To which defendant objected as follows: 'This is not part of the res gestae in this case; it is hearsay evidence; it is not a dying declaration; it is testimony which your honor has ruled out once before; it is irrelevant and immaterial; it is not admissible under any rule of law.'

'Which objection was overruled and exception noted for the defendant.

'Thereupon the witness testified to the conversation as shown by the testimony.

'(9) The following argument of the state attorney was not proper; the injury of same to the defendant was irreparable by the instruction of the court. The statement is as follows, and plaintiff in error assigns the same as error:

"Mr. Durrance: Gentlemen, we can't take men's lives without cause. Throughout the years to come the vacancies caused by the hand of this man--there can be no replacing of the dead; we cannot hear a statement from the dead. His loved ones can only 'sigh for the touch of a vanished hand and the sound of a voice that is still.' Gentlemen of the jury, that should not be condoned or excused without cause, and this mother and widow, the only comfort that she can look forward to in the years to come----' To which W. A. Hallowes, Jr., one of the defendant's attorneys, objected in the following words:

"Your honor, I hate to interrupt counsel, but I take exception to the language of the state attorney.' Whereupon the court ruled and instructed the jury as follows:

"Yes; I dot think that counsel's statement as to the widow is proper argument, and I therefore sustain the objection.'

'Plaintiff in error assigns the same as error and avers that the error was not cured by the instruction of the court.

'(10) The court erred in giving to the jury the following charge, to the giving of which charge defendant duly excepted:

"The court furter charges you, gentlemen, that where two persons engage mutually in combat, knowing that such combat might or would probably result in death or serious bodily injury, and one of the combatants kills the other to prevent death or serious bodily injury to himself, such combatant cannot plead that such killing was in self-defense. In such case, there is mutual combat and both combatants are aggressors, and neither can justify the taking of the life of the other without having honestly and bona fide declined the combat on his part and retreated.'

'(11) The court erred in giving to the jury the following charge, to which the defendant excepted:

"The court further instructs you that, even though a person in the first instance intentionally brings on a difficulty, his right of self-defense will revive, and his action will be deemed justifiable upon the ground of self-defense, where he has withdrawn from the conflict, or difficulty, in good faith, as far as he possibly safely could, and clearly and fairly indicated his desire for peace; and in such case, if he is pursued by the other party, who again brings on a difficulty, and he kills him to save his own life or avoid great bodily harm, his act is justifiable.'

'(12) The court erred in giving to the jury the following charge, to which defendant duly excepted:

"But if a combatant, after having retreated, returns to the combat for the purpose of renewing the same, and as the result of such renewal of the combat he slays his adversary to save his own life or to avoid great bodily harm, he cannot avail himself of the plea of self-defense.'

'(13) The court erred in refusing to give to the jury the following charge requested by the defendant, to which refusal of the court defendant excepted and his exception was duly noted by the court:

"B. If you believe from the evidence in this case that the defendant at the time of the homicide in this case was seated in an authomobile, in this case was seated in an automobile, him with his hand in his breast or under his coat, and that at such time said W. T. Cowles, Sr., was armed with an iron poker, and if you further believe from the evidence that the said W. T. Cowles, Sr., then and there so conducted himself towards the defendant that the defendant as an ordinarily prudent man--that is, a man of ordinary prudence and caution--had reason to believe and did then and there believe that he, the defendant, was in danger of great personal injury or of

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