Smith v. State
| Decision Date | 21 August 1889 |
| Citation | 6 So. 482,25 Fla. 517 |
| Parties | SMITH v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Marion county; J. J. FINLEY, Judge.
Syllabus by the Court
1. Upon a trial for murder the prisoner offered in evidence threats made against himself by the deceased, but, as the evidence in the case failed to show any overt act on the part of the deceased at the time of the homicide indicating an intention to then execute his threats, the evidence so offered was properly excluded by the court.[1]
2. Where illegal testimony has been admitted, it is the duty of the court to strike it out.
3. If a man, whose life has been threatened, meets and slays his adversary under such circumstances as show that at the time his adversary was making some demonstration indicating an intention to then execute his threats, and that he believed and had reasonable ground to believe, that his life was then in danger, or that he was in danger of great bodily injury such homicide is justifiable, although it may turn out that the deceased had no intention at the time to execute his threats. The party threatened is to judge from the circumstances by which he is surrounded and as they appear to him; but when a man acts upon appearances, and takes the life of his fellow-man, he does it at his peril, and he cannot justify such killing unless there are circumstances which would induce a reasonably cautious man to believe that it was necessary to save his own life, or to save himself from great personal injury.
4. When a man has been threatened he may go wherever his legitimate business calls him, but he has not the right to lie in wait for and slay his adversary, and, if he does so, it is murder in the first degree.
5. Where the court gives an erroneous charge which is favorable to the accused, such charge is no ground for reversal.
6. Where counsel make improper statements to the jury it is the duty of the opposite party to call the matter to the attention of the court, and when this is done it is the duty of the court to rule upon it; but where the objection was not insisted upon, and no ruling had, the appellate court cannot consider it.
7. The record of a judgment in a criminal case contains this entry 'Thereupon came a jury, to-wit, [naming them,] twelve good and lawful men, who were duly elected and sworn to well and truly try, and true deliverance make, between the state of Florida and the prisoner at the bar.' Held, that is sufficient to show that the jury were properly sworn, in accordance with the statute, to 'well and truly try, and true deliverance make,' between the state of Florida and the defendant, according to the evidence.
COUNSEL J. W. Couch, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was convicted in the circuit court of Marion county on the 31st day of December, 1888, for the murder of James Bailey. Motion made for new trial, which was overruled, and the plaintiff in error was sentenced to death and the case is now before this court upon writ of error, and the following errors are assigned:
'(1) The court erred in sustaining the motion of the state attorney to strike out of the testimony of witness George Pelt that part of the conversation detailed by him which related to threats made by Bailey against William Smith, plaintiff in error.
'(2) The court erred in refusing to allow the plaintiff in error to prove by witness G. N. Rushing the threats against his life made by deceased, and communicated to plaintiff in error previous to the killing a short time.
'(3) The court erred in not allowing the witness Brown Crowal to testify as to what he had heard the deceased say in regard to the difficulties existing between plaintiff in error and deceased previous to the killing.
'(4) The court erred in charging the jury (third charge) 'that when threats by deceased to kill prisoner have been proven it would not justify the prisoner in killing the deceased, unless it is shown to your satisfaction that the killing was necessary to save the life of the prisoner at the time deceased was killed; and you will look to the evidence to see whether at the time of the killing the deceased had the means in hand to effect the death of the prisoner, and was making demonstrations showing an intention on his part to effect the death of the prisoner, and execute the threats.'
'(5) The court erred in charging the jury (in fifth charge) 'that if the evidence is such as to create in your minds the moral conviction of the prisoner's guilt, then you must find him guilty.'
'(6) The court erred in overruling the motion of plaintiff in error for a new trial.
'(7) The oath required by statute was not administered to the jury in the trial of the cause.'
The first error assigned has reference to a conversation testified to by one of the state witnesses, that he had with the accused and some other parties a short time prior to the killing of Bailey, at which conversation the witness says that the defendant made threats--stating what they were--against Bailey. On the cross-examination the defendant asked the witness if Bailey did not in said conversation threaten the defendant. The witness answered that Bailey did make such threats, and stated what they were. The state attorney moved the court to strike out the evidence of the witness as to threats made by Bailey against the defendant, which motion was granted, and the defendant excepted. In considering this part of the case, it is necessary to give the substance of the evidence, in order that the questions involved may be properly understood. The evidence tends to show that there had for some time been bad blood between the defendant and the deceased, and that the defendant had at different times said that he intended to kill the deceased. Bailey was killed by gunshot, and the shooting occurred at about or a little after dark. In the afternoon of the day on which the shooting occurred the defendant was seen with a double-barreled shotgun heavily loaded, and he was making threats against the life of Bailey. About dark, or a little after, Bailey and another man, Alexander, were at a barn, in the village of Silver Springs. Alexander, as he says, started off to water his mules, and Bailey was to make a fire; that the public road ran close by the barn, and that when he (Alexander) had returned from watering his mules, and was near the barn, he saw the deceased get out of the barn-lot into the public road; that witness heard no words that passed between the deceased and the defendant, nor does he say that he heard any; that he (Alexander) was about 30 yards from the deceased when he got over the fence into the public road; that after getting in the road the deceased took three or four steps in the direction of a wagon tongue which was projecting out of a shed, when witness heard the report of a gun, saw the deceased get back over the barn fence, and saw him fall dead, and that just after the shot was fired he saw the defendant come from behind the barn door and go off with a gun trailing in his hand; that the deceased was shot in the breast; that the wound was about as large as the palm of witness' hand, and it looked like it was made by buckshot; that just after the gun was fired he saw the defendant near where the wagon tongue was projecting from the shed; that the defendant was in the road all the time, but that he did not see him when the gun was fired. There is much other evidence corroborating that of Alexander in many respects; but Alexander was, it seems, the only eye-witness to the difficulty.
That the deceased had made threats against the defendant, and the defendant against the deceased, is shown by the evidence; and evidently it was the intention of counsel for defendant to get before the jury the threats made by deceased against the defendant for the purpose of showing that at the time of the killing he had reasonable ground to believe that he was then in danger of being killed by deceased, or suffering great personal injury at his hands. But under the circumstances, as shown by the evidence, there was no error in the court below excluding from the jury threats made against the defendant by the deceased. Bond v. State, 21 Fla. 738. There was much more reason for admitting in evidence threats in the Bond Case than is shown in the case at bar. In the former, as in the case at bar, threats had been made by the deceased, who, with friends, had gone to the place where the difficulty occurred, and had deposited their arms in a house near by, and when Bond fired the fatal shot the deceased was approaching the house where he had left his gun, and it may have been for the purpose of procuring his gun and using it upon Bond.
In the case at bar the deceased had made threats against the defendant, but there is not the slightest evidence to show that at the time the shooting occurred the deceased was doing anything evincing a design to execute his threats, unless it be so shown by the statement of the defendant. This statement is to the effect that the defendant was going along the public road, when the deceased, who was in the barn-yard told defendant to stop, that he wanted to see him; that defendant did not stop, and that the deceased then got over the fence and again told defendant to stop, and that he kept coming towards defendant; that defendant then turned and said: 'He started towards me again, and I told him again to stop, and not to come any nearer to me, and he started a third time towards me, and I told him the third time to stop, but he did not; and, I knowing that Bailey was a great deal...
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