Roberson v. State

• Decision Date: 05 March 1901
• Citation: 29 So. 535,43 Fla. 156
• Parties: ROBERSON v. STATE.
• Court: Florida Supreme Court

29 So. 535

43 Fla. 156

ROBERSON v. STATE.

Florida Supreme Court

March 5, 1901

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Frank Roberson was convicted of murder in the first degree, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. The carrying of arms in a quiet, peaceable, and ordinary manner but concealed on or about the person, is not either a breach of the peace or malum in se. Neither does it, of itself, tend to a breach of the peace, but it becomes a misdemeanor only because it is prohibited by statute. The statute does not declare it to be a breach of the peace, nor does the statute authorize an arrest without warrant for its infraction.

2. An officer cannot, under the laws of Florida, lawfully arrest a person without a warrant for the bare crime of carrying concealed weapons, whether he knows it of his own knowledge or is informed of it by others, and whether it occurs in or out of his presence, unless it is done in such manner or under such circumstances as, in the presence of the officer to create, threaten, or amount to a breach of the peace; and even in the latter case the arrest would be authorized, not from the bare fact of carrying concealed weapons, but because of the threatened or actual breach of the peace accompanying it.

3. An unlawful arrest, made without warrant is a trespass; and like other trespasses, it may not, in the particular case, constitute an aggravated provocation. The fact that an officer or citizen attempting the arrest, and being slain in so doing, has exceeded his authority, does not reduce the killing to manslaughter, if the slayer had no valid reason to believe himself in immediate danger of great bodily harm, and the homicide was in fact perpetrated not in passion or sudden heat, upon the provocation of the arrest, but with cool, deliberate malice and premeditation. An attempt to arrest a person in violation of law may afford such provocation to the person arrested as to reduce the killing from murder to manslaughter. If the attempt to arrest be unlawful, the party sought to be arrested may use such reasonable force, proportioned to the injury attempted upon him, as is necessary to effect his escape, but no more; and he cannot do this by using or offering to use a deadly weapon, if he has no reason to apprehend a greater injury than a mere unlawful arrest.

4. In trials for homicide committed in resisting unlawful arrests the accused has the right to have the question passed upon by the jury, under proper instructions of the law of the case from the court, as to whether his action in dealing the fatal blow was prompted solely by sudden passion, provoked by the unlawfulness of his arrest, or whether it resulted from malice, or a premeditated design to effect the death of the deceased. If it was the result solely of such sudden passion, then his offense is manslaughter, but, if from premeditated design, then it is murder.

COUNSEL T. A. & B. B. MacDonell, for plaintiff in error.

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

OPINION

TAYLOR C.J.

Frank Roberson, the plaintiff in error, was indicted for the crime of murder in the first degree in the circuit court of Duval county on the 15th day of August, 1899, and on the same day was formally arraigned, and pleaded not guilty. He was tried upon such indictment, found guilty of murder in the first degree, and sentenced to death. From this judgment he took writ of error from this court, and the judgment was here reversed on April 24, 1900, and a new trial awarded. See Roberson v. State, 42 Fla. ----, 28 So. 424. The cause was again tried in June, 1900, and again resulted in a conviction of murder in the first degree, for which the defendant was again sentenced to death, and to review such judgment again comes to this court on writ of error.

At the trial now under review the court gave to the jury the following charge, numbered 8: 'Sheriffs, deputy sheriffs, and constables are authorized to arrest public offenders without warrant for a felony committed in the presence of the officer making the arrest, or if they have reasonable ground for believing that such felony has been committed; and by our statutes sheriffs, etc., are invested with authority to apprehend without warrant any person who is in the disturbance of the peace, and to carry him before proper magistrates for further proceedings according to law; and, in addition, any such officers may arrest without warrant for any misdemeanor tending to a breach of the peace when committed in the presence of the officer making the arrest. Carrying concealed weapons is such a misdemeanor tending to a breach of the peace, if you find from the evidence beyond a reasonable doubt that such offense was committed in the presence of the officer.' This charge was duly excepted to, and is assigned as error, particularly the latter portion thereof, reading as follows: 'Carrying concealed weapons is such a misdemeanor tending to a breach of the peace, if you find from the evidence beyond a reasonable doubt that such offense was committed in the presence of the officer.' The pith of this instruction is that sheriffs, deputy sheriffs, and constables may lawfully arrest without warrant for any misdemeanor that tends to a breach of the peace, when committed in the presence of the officer making the arrest; and that carrying concealed weapons is such a misdemeanor tending to a breach of the peace, as, when committed in the presence of the officer, will authorize an arrest by such officer without warrant.

In view of the evidence disclosed to us in the record, the last above quoted portion of this instruction in reference to the power of officers to arrest without warrant for the misdemeanor of carrying concealed weapons is erroneous. The evidence pertinent to the charge under discussion is, in substance, as follows: Mary Weston, for the state, swore that she was at Pablo on the afternoon of June 26th of last year; that while on her way to a store she met the defendant and his brother walking arm in arm, and that as they passed her one of them shoved her off the sidewalk. Upon her remonstrating with them, one of them drew a pistol from his pocket, and said, 'I will let daylight through you.' The defendant and his brother then went on. She (the witness) then saw Capt. Dennis, and told him that two boys had pistols, and went with him and Mr. Sadler (the deceased) to point them out. She pointed them out to Mr. Sadler and Dennis Jenkings. The two last named acted as deputy sheriffs. She saw Dennis and Sadler go up behind the boys; Dennis going on one side of them and Sadler on the other. She saw the defendant pull away from Sadler, and shooot him, and then he ran, and fired several other shots. 'When the defendant fired at Mr. Sadler, he fell back. I don't think Mr. Sadler shot. I did not see his gun.' Cross-examined, she testified that the boys did not stop after shoving her off the sidewalk, but went on through the pavilion; that she saw Dennis Jenkins standing by the store, and went to him about what the boys had done. He was only a short distance away. Dennis and Mr. Sadler were standing together. Dennis asked Mr. Sadler to go with him. 'I told him these two boys had pistols, and that they drew them on me. He did not know until after the boys had walked on and I told him that the boys had drawn their pistols on me. I am satisfied that neither Jenkins nor Mr. Sadler knew that the boys had pistols until after I had complained to them. The boys went on through the pavilion. They had not gotten to the pavilion when Jenkins and Sadler started after them. I followed behind to point them out. The boys went through the pavilion, and Dennis and Sadler followed them through into the opening under the shed. I still followed them to point out the boys. Jenkins and Sadler did not know who the boys were until I told them. Mr. Sadler and Jekins were in the opening when the firing commenced.'

Jerry Delaney, for the state, testified as follows, in substance 'I reside at Pablo, and saw the shooting of Deputy Sheriff Sadler by the prisoner, Frank Roberson, on the 26th of June last. I saw Mr. Sadler and Dennis Jenkins, the deputy sheriffs, coming towards me. Right in front of them walked two colored boys, close together, who I know as the defendant, Frank Roberson, and his brother, Mose Roberson. Sadler and Jenkins walked faster than the two boys, and soon came up with them. Coming up with the boys, Sadler went on the right and Jenkins on the left. Sadler took the prisoner by the right arm. The prisoner pulled away, and drew his gun, jumped back, and fired at Sadler twice when he was about eight feet from him. The prisoner then ran across the railroad track, turned, and fired again; then ran, and turned again, and fired another shot. The railroad runs east and west. He and the prisoner were on the south side of the track when the shooting occurred first, then he ran across to the north side of the track in a northwest direction. As soon as the prisoner shot Mr. Sadler, I and Lowe called out to Sadler to shoot. We also called out to Dennis Jenkins to shoot. When the prisoner fired the first shot, he was about two feet from Sadler. After the second shot was fired by the prisoner, Mr. Sadler fell to the ground. He was shot in the breast. I saw Sadler's corpse next day, and attended his funeral. Sadler drew no pistol until after I called out to him to shoot. The prisoner shot Sadler almost instantaneously after Sadler put his hand on him. Sadler fell about five or six feet from where he was shot. When Sadler came up to Frank Roberson, he took hold of his arm firmly. When the shooting occurred, I was between fifteen and eighteen feet from them. Sadler and Jenkins had on badge of deputy...