State v. Coles

• Citation: 91 So.2d 200
• Parties: STATE of Florida, Appellant, v. Ola COLES, Appellee.
• Decision Date: 05 December 1956
• Court: United States State Supreme Court of Florida

Page 200

91 So.2d 200

STATE of Florida, Appellant, v. Ola COLES, Appellee.

Supreme Court of Florida, Special Division B.

Dec. 5, 1956.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellant.

Herman W. Goldner, St. Petersburg, for appellee.

O'CONNELL, Justice.

Defendant, Ola Coles, was tried for manslaughter. The jury returned a verdict of guilty. On motion therefor the trial judge granted a new trial. The State brings this appeal. We are required to determine whether the trial judge abused his discretion in granting the motion for new trial.

That defendant killed Robert Foster, by shooting him with a shotgun shortly after 8 o'clock on the morning of May 13, 1955, was undisputed at the trial and is not disputed now. Defendant pleaded self-defense.

The facts surrounding the killing are relatively simple.

For about seven months previous to his death Foster, although not married to defendant, lived in defendant's home occupying her bed most of the time. He came to live with defendant with her permission, however, she stated that she had thereafter asked him to leave her home, but he refused.

On the evening prior to the killing Foster came home in a drunken condition. He and defendant were in bed together by 10 P.M. Foster argued with, cursed and threatened to kill defendant during much of the night. Annie Lee Davis, a roomer in defendant's house, testified that she was awakened by the argument and went to the defendant's room about 2 A.M. That Foster was holding a knife on defendant. That Foster told her their argument was none of her business so she went back to bed. Defendant testified that Foster 'jugged' (stuck) her in the stomach with the knife during the night making a small cut.

Defendant and Foster arose on the fateful morning at about 6:30 A.M. Daniel Crooms, who was a night lodger and who slept on a couch or cot in the living room, awakened about the same hour, as did Annie Lee Davis.

Defendant began to prepare breakfast. Foster began cursing her in the kitchen. Defendant claimed that Foster struck her with his hand and threatened to kill her. After the kitchen episode Foster joined Crooms in the living room and called to defendant to bring his shoes, which she did. She claimed that when she did so Foster had his knife beside him and got up again threatening to kill her.

Defendant left the living room, went to her bedroom, got her shotgun and two shells. She then took a shot at Foster, shooting from the kitchen into the living room. She missed. According to Crooms, Foster at this time was sitting in the living room putting on his socks. Defendant departed the house through a rear door, leaned the gun against the house, went to a neighbors and placed a call to the police. According to her the line was busy so she came back, picked up her gun, went to the front of the house and took up a battle station behind a car which was parked in front of but slightly down the street from her house.

At this point, Annie Lee Davis was sitting on the front porch, Crooms and Foster were still in the living room.

Foster went to the front screen door and standing on the inside thereof opened it slightly and said to defendant, 'You thought you shot me, didn't you * * * but you didn't. Come on back in the house, I'm not going to bother you.'

There is no material dispute on the events which transpired up to this point.

Annie Lee Davis testified that after Foster came to the screen door and made the remarks set forth above that '* * * she (defendant) just throwed it (the gun) up and shot.' She stated that she heard Foster say nothing after asking defendant to come back into the house. This witness was some 8 or 10 feet from Foster at the time. Defendant was several times that distance from Foster.

Daniel Crooms stated that Foster walked to the screen door, opened it slightly with his left hand, spoke to the defendant about coming back in, then turned his head toward Crooms and to Crooms, but not in a loud voice, '* * * said something about cutting her head off or something.' Crooms said that just as Foster got those words out of his mouth he was shot and fell back into the room.

Defendant stated that after Foster asked her to come back in she heard him make the statement to Crooms about cutting her head off, that she could see his knife in his pocket, that he put his hand in his pocket, and that 'he acted like he started to come after me'. She then shot him because he had threatened to kill her and she was afraid he would do so.

Foster died instantly. Crooms, Annie Lee Davis and defendant were the only witnesses to the killing. The first two testified for the State. Defendant was her sole witness.

The evidence showed that Foster's treatment of the defendant on the evening prior to and the morning of the killing was not unusual, but rather was customary; that he had threatened to kill her on numerous occasions, had beaten her on at least one other occasion, always brandished a knife and argued with and cursed her frequently. Yet in spite of all his threats and abuse he never made any attempt to kill her.

The jury found the defendant guilty. The trial judge awarded her a new trial. In his order granting new trial the trial judge assigned as his reasons that (1) the State did not fully and adequately maintain the burden of proof, and (2) that the defendant established as a matter of law that the killing of Foster was an act of self-defense and therefore justifiable homicide.

The only question in controversy in the court below was whether the killing of Foster was in self-defense. On this appeal we are required to determine if there was sufficient evidence to support the...