State v. Peel

• Decision Date: 29 April 1959
• Docket Number: No. 397,397
• Citation: 111 So.2d 728
• Parties: STATE of Florida, Appellant, v. Joseph Alexander PEEL, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 728

111 So.2d 728

STATE of Florida, Appellant, v. Joseph Alexander PEEL, Jr., Appellee.

No. 397.

District Court of Appeal of Florida, Second District.

April 29, 1959.

Richard W. Ervin, Atty. Gen., David U. Tumin, John C. Reed, Asst. Attys. Gen., for appellant.

Sidney J. Catts, Jr., Hal S. Ives, West Palm Beach, J. Frank Maynard, Jr., Lake Park, for appellee.

ALLEN, Judge.

This is an appeal by the State from an order granting a motion to quash an information. The appellee, Peel, was charged with being principal in the second degree in an assault with intent to kill one, Harold Gray, by another, Floyd Albert Holzapfel. Holzapfel had previously been indicted for such assault, and upon trial, he had been found not guilty. Peel then was charged as above mentioned and he moved to quash the information on the ground that Holzapfel had been found not guilty by reason of acting in self-defense and that, under applicable law, his alleged accomplice could not thereafter be tried on the above mentioned charge.

The information against Holzapfel was filed in December, 1956, and the information in the present case against Peel was filed July 3, 1957. The defendant's supplemental motion to quash was granted by the court on November 13, 1957. The State filed a petition for rehearing on defendant's supplemental motion to quash on the ground that the record of the Holzapfel case did not definitely show that the jury based their not guilty verdict on the defense of self-defense.

The lower court, in passing on the motion to quash, based its decision on the case of Kelley v. State, 1920, 79 Fla. 182, 83 So. 909, 16 A.L.R. 1465, stating:

'* * * It has been cited with approval in the Heisler (sic) against State, which case has been referred to and it also has been cited in other jurisdictions. The Court is of the opinion, and in this I have no doubt, that the Kelly (sic) Case enunciates the law of the State of Florida and whether it be a good law or a bad law, it is not for this Court to say, and my ruling is based upon the law as enunciated in Kelly (sic) against State and as approved in the case of Heisler (sic) against State and based on those two decisions the Motion to Quash will be granted.'

The information involved in this case is as follows:

'In the Criminal Court Of Record, of the County of Palm Beach and State of Florida, July Term, in the year of our Lord, one thousand nine hundred and Fifty Seven.

State of Florida

vs.

Joseph Alexander Peel, Jr.

'Information for Principle (sic) in the second degree to assault with intent to kill.

'In the Name and by Authority of the State of Florida:

'Charles A. Nugent, Jr. County Solicitor for the County of Palm Beach, prosecuting for the State of Florida in the said County, under oath information makes that Floyd Albert Holzapfel of the County of Palm Beach and State of Florida, on the 12th day of December in the year of our Lord, one thousand nine hundred and fifty six in the County and State aforesaid, with a certain deadly weapon, to-wit: a black jack, pistol or other blunt instrument, a better and more particular description of which is to the County Solicitor unknown, which he then and there had and held in and upon one Harold Gray, with a premeditated design and intent to then and there unlawfully kill and murder the said Harold Gray, then and there an assault did make, and did then and there beat, bruise, wound and ill-treat the said Harold Gray, and Joseph Alexander Peel, Jr., of the County of Palm Beach, State of Florida, at the time of the committing of the felony aforesaid, to-wit, on the u2th day of December, 1956, in Palm Beach County, Florida was then and there unlawfully and feloniously present, and did unlawfully and feloniously aid, abet, and otherwise procure the said Floyd Albert Holzapfel to do and commit the said felony, in the manner and form aforesaid, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.

Charles A. Nugent, Jr. /s/

County Solicitor,

Palm Beach County, Florida.'

In the case of Kelley v. State, supra, Charles Kelley and Russell Kelley were jointly indicted and tried for murder, and Russell Kelley was acquitted, and Charles Kelley was convicted of murder in the second degree. The Supreme Court, in its opinion, shows the following basic facts: Charles and Russell Kelley drove to a home where Register was visiting. There seems to have been bad feeling on the part of Register toward Charles Kelley, of which Kelley apparently had no knowledge until the night before. When he drove up to the home he was met by a Mr. or Mrs. Fox, who urged him to go away and he asked Mrs. Fox to tell Register to come out. Subsequently Register came out and Charles Kelley and he walked down the road where Kelley cursed Register and a fight was instigated. Both the Kelleys stated that Charles Kelley told Register that if he had done anything he was willing to apologize and Register replied that he didn't want apologies. A fight ensued, after which the parties separated and Register walked back to the gate through the yard and into the house while Charles Kelley walked back to his buggy. Charles Kelley was the father of Russell Kelley who was 17 years old at that time. Register was safely back within the precincts of the house and neither of the Kelleys followed him in. The undisputed testimony showed that Register was deliberate in getting his gun and going back to engage in another affray. He got his gun and went out towards Kelley. There was some dispute as to who was the aggressor in the second affray, but Charles Kelley was shot in the face and when he threw up his gun he was shot in the hand by Register. Charles Kelley handed his gun to his son, Russell Kelley, and Register at once shot at Russell, who returned the fire. Russell Kelley's second shot struck Register, causing him to fall to the ground. From the effects of this wound he died. All of the testimony showed that it was the shot last fired by Russell Kelley, the son, which killed Register.

The circuit judge charged the jury that before Russell Kelley could be convicted, they must find from the evidence that he acted of his own volition and not by direction and because of a fear of his father, and that an unlawful act committed by the child in the presence of the father and at his direction, because of the criminal intent of the father and not because of the wrong of the child, is the crime of the father and not of the child. The Supreme Court said [79 Fla. 182, 83 So. 911]:

'This charge submits to the jury as an issue of fact whether or not Russell Kelley shot by direction of his father, or because of fear of him, although there was absolutely no testimony from which the jury could find or even infer that the son was directed by the father to shoot Register, or that Russell shot him because of fear of his father. There being no testimony upon which this charge could be predicated, it was harmful error.'

The Court then commented that the charge was wrong in this particular case in that the principle announced was wrong under the facts. The Court then said:

'We can readily see how this charge induced the remarkable verdict in this case, where the son who fired the fatal shot was acquitted, and the father convicted of murder in the second degree.

'The verdict of acquittal of Russell Kelley could only have been reached by the jury upon one of three hypotheses:

'(1) That if Russell Kelley killed Register, he shot in self-defense.

'(2) That the fatal shot was fired by Charles Kelley, and not by Russell Kelley.

'(3) That his father told him to shoot Register, and he was therefore guiltless of any offense.

'We dismiss the last hypothesis, because it has no support in the testimony, and is not sound in law. Not a single witness testified that Charles Kelley, when he handed the gun to his son, told him to shoot Register, or gave him any directions or instructions, or made any request of him whatsoever.

'The verdict could not have been predicated upon the second hypothesis, as the testimony seems to establish very clearly by the witnesses for the state as well, as for the defense, that Russell Kelley fired the fatal shot.

'This brings us to the first hypothesis, that Russell Kelley killed Register in self-defense. The testimony fully establishes this to be the case, and we can reach no other conclusion than that the jury acquitted Russell Kelley upon the ground that his life was in imminent peril, and if he had not killed Register he was in immediate danger of being killed by him, and this too without his having been an aggressor in any way, or having sought or provoked the affray or took part in any difficulty that may have occurred between his father and Register. * * * The verdict then presents this remarkable situation: Russell Kelley, assaulted by Register with a deadly weapon, shots (sic) and kills him in self-defense, and Charles Kelley is convicted of murder in the second degree for being present, aiding and abetting his son in committing a justifiable homicide.

'It seems quite clear that the jury acquitted Russell Kelley on the ground that he killed Register in self-defense, and, that being so, Charles Kelley could not be lawfully convicted of any offense predicated upon his being present, aiding and abetting his son in committing a justifiable homicide.'

In the case of Hysler v. State, 1939, 136 Fla. 563, 187 So. 261, 262, a petition for habeas corpus was brought by Clyde Hysler against the State of Florida to withhold execution of the death penalty under a murder conviction. The facts, as shown in the opinion of the Court, were that the petition of Clyde Hysler was based, among other grounds, on the assertion that Hysler was convicted as a principal in the second degree and his conviction was affirmed by the Court, but that the principal in the first degree had not been convicted. The indictment in...