Tillman v. State
| Decision Date | 18 April 1921 |
| Citation | 88 So. 377,81 Fla. 558 |
| Parties | TILLMAN v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Manatee County; O. K. Reaves, Judge.
Will Tillman was convicted of assault with intent to commit murder in the third degree, and he brings error.
Reversed.
Syllabus by the Court
Homicide with design to effect death by unlawful act not 'murder in third degree.' Where a homicide is committed with a design to effect death by an unlawful act, it is not murder in the third degree, because to constitute that offense the killing must be perpetrated without any design to effect death. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Murder in Third Degree.]
No such offense as assault with intent to commit murder in third degree. There is no such offense as an assault with intent to commit murder in the third degree, because the presence of an intent precludes the commission of that offense.
Officer without warrant may not seize possessions of traveler on highway. An officer without a search warrant, or warrant of arrest, has no right to stop any one on the public highway particularly in the nighttime, and demand that he surrender what he has in his possession, or take if from him without his consent.
Officer's oath precludes his seizing property in violation of constitutional provision. The oath of an officer to support protect, and defend the Constitution precludes his seizing property in violation of any provision of the Constitution that 'the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches, shall not be violated, and no warrants issued but upon probable cause, supported by oath, or affirmation, particularly describing the place or places to be searched, and the person or persons, and thing or things to be seized.' Declaration of Rights, § 22.
E. Bradley, of Palmetto, for plaintiff in error.
Rivers H. Buford, Atty. Gen., and J. B. Gaines Asst. Atty. Gen., for the State.
Will Tillman was tried in the circuit court of Manatee county on an indictment charging that he 'unlawfully, feloniously and from a premeditated design to effect the death' of C. D. Blackwelder, an assault did make, etc., 'with intent the said C. D. Blackwelder then and there to kill and murder.' He was convicted of 'assault with intent to commit murder in the third degree.'
It is contended by the plaintiff in error that the verdict is illegal, in that it finds the defendant guilty of an offense that does not exist. Murder in the third degree is defined by the statute to be 'the unlawful killing of a human being * * * when perpetrated without any design to effect death, by a person engaged in the commission of any felony, other than arson, rape, robbery or burglary.'
To constitute the offense of murder in the third degree, the assault must be made 'without any design to effect death.' If the design to effect death by the unlawful act exists, it cannot be murder in the third degree, because to constitute that offense the killing must be perpetrated without any design to effect death. There can therefore be no such offense as an assault with intent to commit murder in the third degree, because the presence of an intent precludes the commission of that particular offense.
But in Grace v. State, 78 Fla. 486, 83 So. 271, this court sustained a conviction of assault with intent to commit murder in the third degree on the ground that the facts afforded a legal basis for finding the defendant guilty of the higher offense of murder in the second degree.
The authority for this decision is placed on section 6110 of the Revised General Statutes of 1920, which provides:
'In all criminal prosecutions hereafter begun in this state, if the defendant be found guilty of an offense lesser in degree, but included within the offense charged in the indictment or information, such verdict shall not be set aside by the court, upon the ground that such verdict is contrary to the evidence, if the evidence produced in such case would have supported a finding, or if such court would have sustained a verdict of guilty of the greater offense.'
Under this statute it has been held--Grace v. State, supra--that if the testimony will sustain a conviction of assault with intent to commit murder in the first or second degree, a verdict of assault with intent to commit murder in the third degree will not be set aside.
The testimony in this case, however, would not sustain a verdict of murder in the first or second degree, and the statute, therefore, does not apply.
The only testimony to show how the shooting occurred is that of Blackwelder, the deputy sheriff, the defendant having denied the shooting, and claimed to have been at his home at the time the affray is said to have taken place.
The material part of the testimony of the deputy sheriff is substantially as follows:
'That while proceeding in his car along the road he met 'a negro walking with something under his arm, and when I overtook him I stopped in the road, and he turned out on the left hand side of my car, and he stopped, and I spoke to him, and asked him what it was he had under his arm, and he said something--I couldn't understand what he said--and I got out of my car and walked around to where he was, and I saw who he was. It was Will Trillman. I went and--and when I got to him I reached under his arm and asked him to let me see what he had, and he threw his pistol on me and said, 'Now, you damned son of bitch, you have been getting it from some of them, but you will never get it from me.' And I didn't have my pistol out, but I grabbed his, and he shot at me, and shot through the brim of my hat, and blinded me so I couldn't see anything for a little while, and by the time I got straight and got my pistol he was already, I should say, 30 yards from me, running, and I shot at him five times. * * * My lights were burning when I met him, and the lights continued to burn, and my engine was running all during the time of the altercation, or scuffle, with the defendant.
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