Thomas v. State
| Decision Date | 16 July 1928 |
| Citation | 118 So. 22,96 Fla. 243 |
| Parties | THOMAS v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Osceola County; Frank A. Smith, Judge.
Gill Thomas was convicted of murder in the second degree, and he brings error.
Affirmed.
Syllabus by the Court
Indictment for murder need not allege place where deceased died (Rev Gen. St. 1920, § 5019). In an indictment for murder, the place where the deceased died in not necessary to be alleged.
Person inflicting mortal wound on another may be tried either in county where would was inflicted or where death occurred (Rev. Gen. St. 1920, § 5019). In cases of homicide where the mortal wound is inflicted in one county in the state and the death from such wound occurs in another county in the state the perpetrator of the offense may be indicted, tried, and convicted in either of the counties.
Motion for new trial for newly discovered evidence must show diligence of accused and counsel to procure evidence before trial. A motion for a new trial on newly discovered evidence in a criminal case should show diligence on the part of the accused and his counsel to procure it before the trial.
Defense of self-defense fails in case accused inflicted mortal wound through fear, without reasonable ground to apprehend immediate bodily injury. In a trial for murder, where the defense interposed is self-defense, and it appears that the accused inflicted the mortal wound through fear, and not because there existed any reasonable ground to apprehend immediate bodily injury from an attack by the other, the defense fails.
Judgment of conviction will not be reversed because of errors not resulting in miscarriage of justice (Rev. Gen. St. 1920, § 2812). Where errors have been committed in the trial of a criminal cause, but they are of such character that upon an examination of the entire record it does not appear that such errors resulted in a miscarriage of justice, the judgment will not be reversed because of such errors.
Pat Johnston, of Kissimmee, Akerman & Akerman, of Orlando, and Palmer, Dickenson, Shurley & Lake, of Tampa, for plaintiff in error.
Fred H. Davis, Atty. Gen., and Roy Campbell, Asst Atty. Gen., for thE state.
Gill Thomas was convicted of the murder of Charles Ed Willie. The indictment charged murder in the first degree; the conviction was of murder in the second degree. The crime was committed Sunday night, the 27th of March, 1927, in St. Cloud.
The evidence is sufficient to support the verdict rendered.
It is contended by counsel for the plaintiff in error that there was a fatal variance between the allegation and proof, in that the indictment alleges that the crime was committed in Osceola county, while the evidence is undisputed that, although the shooting of the deceased occurred in Osceola county, he died several hours afterward in Orange county. The point is presented in several ways. There is no merit in it.
An averment as to the place where the deceased died is not necessary in an indictment for murder. In cases of homicide, where the mortal wound is inflicted in one county in the state, and the death from such wound occurs in another county in this state, the perpetrator may be indicted, tried, and convicted in either of said counties. See Roberson v. State, 42 Fla. 212, 28 So. 427; section 5019, Revised General Statutes 1920; Smith v. State, 42 Fla. 605, 28 So. 758.
There was a motion for a continuance upon the ground of newly discovered evidence. The circumstances of the homicide were as follows: The deceased, with an acquaintance, was riding in an automobile owned by the former at about 9:30 o'clock in the city of St. Cloud. They passed the defendant and his friend, Stiffler, who were walking. The occupants of the car and the pedestrians hailed each other. The deceased stopped his automobile, backed up to where the two pedestrians were, whereupon the defendant Gill walked up to the automobile, thrust his pistol in front of the person seated in the car, and fired upon the deceased, inflicting one wound in the throat and another in the side.
The defendant's version of the affair was that the night before he had been out all night with Willie, and early in the morning the latter attacked the defendant,...
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