Stokes v. State

• Decision Date: 23 July 1907
• Citation: 54 Fla. 109,44 So. 759
• Court: Florida Supreme Court
• Parties: STOKES et al. v. STATE.

44 So. 759

54 Fla. 109

STOKES et al. v. STATE.

Florida Supreme Court, Division B.

July 23, 1907

Error to Circuit Court, Citrus County; William S. Bullock, Judge.

J Barney Stokes and G. Lee Stokes were convicted of murder in the first degree, and they bring error.Reversed.

Syllabus by the Court

SYLLABUS

No error is made to appear in the court's overruling a challenge of a talesman for cause, when the bill of exceptions does not show that the defendants challenged the proposed juror peremptorily, and it is made affirmatively to appear that the proposed juror did not sit on the jury.

In a trial for murder in the first degree, the trial judge gave the following charge to the jury: 'I now define to you murder in the first degree: The unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed, or any human being, or when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, or burglary, is murder in the first degree.Premeditation is defined as meaning intent before the act, but not necessarily an intent existing any extended time before the act.'Premeditated design to kill' means an intent to kill, 'design' means intent, and both words imply premeditation.The premeditation need not be for any particular length of time but it, of course, must be of sufficient duration to enable the slayer, under the circumstances of each case, to form a distinct and conscious intent to kill.'

In the opinion of Taylor, P.J., and Hocker and Parkhill, JJ., this charge is erroneous and misleading as a definition of murder in the first degree.Shackleford, C.J., and Cockrell and Whitfield, JJ., not concurring, the question presented by this charge is not decided.

The above instruction does not contain two distinct propositions and is not subject to the well-settled rule that, where the charge of the court to the jury embraces several distinct propositions, a single general exception to the charge as given is not available, if any one of the propositions is correct.

In a prosecution for murder, a charge that: 'On the question of intent on the part of the defendants and the purpose of their prior engagement to meet and settle the difficulties, whether to be done peaceably or otherwise, you are to consider their prior conduct, and, if they armed themselves with deadly weapons before their going, the purpose and object of their arming themselves'--is erroneous, as assuming to be true a fact not clearly admitted by defendants.

In a prosecution for murder, a charge is erroneous and misleading when it submits to the jury the question of the existence of bad blood between the families of the deceased and the defendants, when there is no evidence of the existence of bad blood between the families of the deceased and either of the defendants.

In a prosecution for murder, a charge is erroneous and misleading when it excludes consideration by the jury of facts in evidence tending to explain the presence of defendants charged as accessories at the scene of the homicide, and explanations given by them for being armed with deadly weapons.

COUNSELThomas Palmer and T. P. Lloyd, for plaintiffs in error.

W. H. Ellis, Atty. Gen., and Ed. W. Davis, State's Atty., for the State.

OPINION

PARKHILL J.

The plaintiffs in error, J. Barney Stokes and G. Lee Stokes, together with Tom Stokes, were jointly indicted in the circuit court for Citrus county for murder in the first degree of one Watt Zelner.The indictment charged G. Lee Stokes with inflicting the mortal wound which caused the death of Zelner by shooting him with a shotgun, J. Barney and Tom Stokes are charged in the indictment with being 'present, unlawfully and from a premeditated design to effect the death of the said Watt Zelner, aiding, abetting, assisting, counseling, and advising the said G. Lee Stokes the murder aforesaid in manner and form aforesaid to do and commit.'The plea of the said defendants was not guilty.On the 12th day of November, 1906, a trial was had.The jury returned a verdict of murder in the first degree as to J. Barney Stokes and G. Lee Stokes, with a recommendation of mercy.Tom Stokes was convicted of murder in the third degree.From the judgment and sentence of life imprisonment imposed upon them, J. Barney Stokes and G. Lee Stokes have sued out a writ of error, returnable to the present term of this court.

There are 20 assignments of error.All of them are expressly abandoned or waived by not being argued, except the first, seventh, eighth, twelfth, fourteenth, and fifteenth.

I.We will consider now the first assignment of error: 'The ruling of the court in refusing to sustain and in overruling the challenge for cause made by the plaintiff in error G. Lee Stokes to L. Thompson tendered as a juror in said cause.'

It is insisted here that the talesman Thompson, having formed an opinion as to the guilt or innocence of the defendants from information derived from a witness for the state, was incompetent as a juror.Upon being examined on his voir dire, the venireman Thompson was challenged for cause by the defendants.The court overruled the challenge, to which ruling the defendants excepted.The bill of exceptions does not show that either of the defendants challenged the proposed juror peremptorily.It does affirmatively appear that Thompson did not sit on the jury.It does not appear how this was brought about.It appears that upon the impaneling of the jury the defendantsG. Lee Stokes and J. Barney Stokes exhausted their peremptory challenges, but it does not appear that any one of these challenges was used in getting rid of Thompson.It does not appear that Tom Stokes exhausted the peremptory challenges to which he was entitled.It is not made to appear to us that in getting rid of Thompson any right of any one of the defendants was abridged.For all that appears by the record, the court, of its own motion later on, may have caused Thompson to stand aside, or the state may have challenged him peremptorily afterwards, or he may have been challenged peremptorily by the defendantTom Stokes.Be that as it may, under the showing made here, we are of the opinion that, since Thompson did not sit on the jury, no harm was done to defendantsJ. Barney or G. Lee Stokes.Burt v. Panjaud,99 U.S. 180, 25 L.Ed. 451.So, whether the court erred or not in overruling the challenge for cause, this assignment must fail.

The seventh and eighth assignments of error are argued together, in the endeavor to show that the verdict is contrary to the evidence.As this case must be reversed upon other grounds, we will not discuss the sufficiency of the evidence.

II.The twelfth assignment of error questions the correctness of the following instruction, No. 3, given by the court upon its own motion: 'I now define to you murder in the first degree: The unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed, or any human being, or when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, or burglary, is murder in the first degree.'Premeditation' is defined as meaning intent before the act, but not necessarily an intent existing any extended time before the act.'Premeditated design to kill' means an intent to kill, 'design' means intent, and both words imply premeditation.The premeditation need not be for any particular length of time, but it, of course, must be of sufficient duration to enable the slayer, under the circumstances of each case, to form a distinct and conscious intent to kill.'To the giving of this charge by the courtthe defendants then and there excepted.The defendants also excepted to the giving of this charge by incorporating the same in his motion for a new trial.The Attorney General contends that this assignment cannot be considered, because 'there was an exception to the entire charge, which embraced two propositions.'

In McCoggle v. State,41 Fla. 525, 26 So. 734, the court said: 'Referring to the record for the charges thus excepted to, we find the single general exception thus made embraces six several instructions upon different propositions of law.The well-settled rule here is that, where the charge of the court to the jury embraces several distinct propositions, a single general exception to the charge as given is not available, if any one of the propositions is correct.'The charge given by the court to the jury in the instant case embraced 23 several instructions, containing as many distinct propositions.The defendants, however, did not except generally to the giving of several of these instructions, embracing distinct propositions.Their exception was specific to the giving of instruction No. 3 which embraces only one proposition.Certainly this instruction does not contain two distinct propositions.It defines murder in the first degree.That part of the charge defining premeditation is not a proposition distinct from a definition of murder in the first degree.It is explanatory of the term 'premeditated design' as used in the first sentence of the instruction.The sentences of the instruction all deal with, explain, and relate to the definition of murder in the first degree.The trial court announced the one proposition involved in the instruction when he said: 'I now define to you murder in the first degree.'The defendants saved their exception to the giving of this instruction, and we think the court erred in the giving of this instruction.We do not propose to enter upon an extended discussion of this question, or to give at any length our reasons for the conclusion stated.This question has been considered fully and...