Rhodes v. State

• Decision Date: 22 March 1932
• Citation: 104 Fla. 520,140 So. 309
• Parties: RHODES v. STATE.
• Court: Florida Supreme Court

140 So. 309

104 Fla. 520

RHODES v. STATE.

Florida Supreme Court, Division A.

March 22, 1932

Error to Circuit Court, Seminole County; W. W. Wright, Judge.

Lee Rhodes was convicted of murder in the first degree, and he brings error.

Reversed and remanded.

COUNSEL E. F. Housholder and R. W. Ware, both of Sanford, for plaintiff in error.

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

OPINION

BUFORD C.J.

In this case the plaintiff in error was convicted of the crime of murder in the first degree in the circuit court of Seminole county. There were three questions raised by the assignments of error which are necessary to be discussed. The first question presented is whether or not the evidence was sufficient to sustain the verdict. We think the evidence was entirely sufficient. The evidence shows that plaintiff in error and the deceased were at a Saturday night frolic; that a quarrel arose in which the deceased appears to have taken some part, as did also the plaintiff in error; deceased walked away from where the quarrel was in progress, and the witnesses saw him pass around the automobile; the plaintiff in error passed around the automobile the other direction and, as some of the witnesses say, 'headed off' the deceased as he reached a place about opposite the front door of the automobile, and then witnesses saw the hand of the plaintiff in error go up and come down at and toward the deceased. The deceased fell, and examination showed that he had then and there been cut in the neck with a sharp instrument, which wound very soon thereafter caused his death. Witnesses heard deceased say to plaintiff in error that the plaintiff in error had cut him without cause and that deceased was unarmed. Witnesses also saw defendant plaintiff in error kick, or attempt to kick, the deceased after he fell to the ground, curse him, and say he would kill him. The plaintiff in error left the scene in an automobile in which was found a razor. The record shows that several of the witnesses present said to the plaintiff in error 'Lee, you ought not to done that,' or words to that effect; that the deceased, in the presence of the accused and in the presence of others, said: 'Why did you cut me? I have not got so much as a penknife'; and that Ennis Jordan, who was then present, said to plaintiff in error 'Lee, God damn it, you done cut him; don't kick him,' and Lee said: 'God damn son of a bitch, I'll kill him.'

If one person strikes another across the neck with a sharp knife or razor, and thereby inflicts a mortal wound, the very act of striking such person with such weapon in such manner is sufficient to warrant a jury in finding that the person striking the blow intended the result which followed. There can be no doubt from the evidence in this case that the plaintiff in error struck the fatal blow.

If one unlawfully assaults another with a deadly weapon with the intent to kill such person so assaulted, and does thereby kill such person so assaulted, such act constitutes murder in the first degree, if such unlawful assault was committed from and with a premeditated design to effect the death of the person so assaulted. It is not necessary, however, for the premeditation to have been conceived and to have existed any particular length of time. It is sufficient if it be shown that the accused had ample time to form the purpose to kill the deceased and for the mind of the killer to become fully conscious of its own design. Green v. State, 93 Fla. 1076, 113 So. 121; Buchanan v. State, 95 Fla. 301, 116 So. 275, and cases there cited.

The evidence in this case fully establishes all the essential elements of murder in the first degree.

We shall pass over for the present the question raised by the second assignment of error.

The third assignment of error is as follows:

'The Court erred in allowing the State of Florida over the objection of the defendant to propound the following question to the witness M. C. Bryan, and in allowing the said witness to answer the same, to-wit:

'Q. During the course of your conversation did you tell her that when Lee Rhodes killed Tom I helped him out of it, and told him if he didn't quit drinking he would be in it again?

'A. I told her that I told Lee when the court turned him loose from killing Tom Searcy for him never to drink any more liquor, if he drank liquor at some time he would get drunk and if he ever got in trouble again and him drinking it would be harder for him to get out than it was at that time.'

We can see no legitimate purpose that could have been served by the evidence sought to be elicited and which was here objected to. It is contended that the evidence was sought for the purpose of showing the interest of the witness in the accused and to lay a predicate for impeachment by showing such interest, but the witness had not denied that he was interested or had been interested in the welfare of the accused, and therefore there was no necessity for a predicate for impeachment. Aside from this, the question was prejudicial to the accused because it showed to the jury by inference at least that the accused had been at some time charged with the unlawful killing of some other person. The question was an improper one, and the court should have stricken the question and instructed the jury to disregard the same and allow it to have no effect in connection with their consideration of the case. We think that this irregularity, however, was not sufficient to warrant a reversal, though it is of sufficient importance for this court to take notice of it and to sound the warning that trial judges may guard...