Ward v. State

• Citation: 75 Fla. 756,79 So. 699
• Parties: WARD v. STATE.
• Decision Date: 30 May 1918
• Court: United States State Supreme Court of Florida

79 So. 699

75 Fla. 756

WARD v. STATE.

Florida Supreme Court

May 30, 1918

Rehearing Denied July 3, 1918.

Error to Circuit Court, Lafayette County; M. F. Horne, Judge.

Oliver Ward was convicted of manslaughter, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Upon the prosecution of one charged with murder, evidence offered by the state to show that the deceased was a member of a group of young men who were accustomed to commit breaches of the peace upon the premises where defendant was employed, and with one of whom he had had a difficulty and concerning whom he had said that he would put a stop to their carousals if he had to kill one of them 'just to see how he looked dead,' is admissible as tending to show a premeditated design on the part of the defendant to kill a human being and as tending to show who began the difficulty, even though it is not shown that the deceased was personally known to the defendant.

Upon the trial of one charged with murder in the first degree error in admitting evidence to show premeditation is cured by a verdict of manslaughter.

Error in excluding a question framed to elicit competent and relevant testimony may be cured by the subsequent admission of the testimony from another witness.

The rule upon the subject of the admission in evidence of dying declarations requires that it be first shown to the satisfaction of the court that the deceased, not only considered death imminent, but that he believed that he was without hope of recovery.

A dying declaration to be admissible must also be confined to the res gestae, and there is no merit in an objection that there is other testimony upon the same matters.

If a ruling by the trial court admitting testimony does not clearly appear to have been erroneous, the ruling will not be disturbed.

A motion should be made to strike an improper answer of a witness to a proper question propounded. If that course is not followed, the party objecting will not be heard to complain here, because for aught that appears the objection was abandoned in the lower court.

A question propounded to a witness, called to testify to dying declarations, which sought to elicit information as to whether the deceased realized his condition to be serious and whether he had any hope of recovery, is proper.

In examining a witness upon the subject of dying declarations it is improper and may lead to reversible error to lead the witness and suggest a thought. Such practice may be productive of harmful results when the witness ascribes the thought so suggested to the deceased and undertakes to clothe it in his (the witness') own words. The better practice is to request the witness to repeat what the dying man said about the difficulty. If any part of the testimony is inadmissible as evidence, it may be stricken on motion.

A motion to strike testimony should be restricted specifically to that part of it which is objectionable. When the motion to strike is so broad as to include proper evidence, it will be denied although some parts of it are inadmissible.

If the trial judge errs in allowing one witness to give improper evidence, it is no ground for reversal that he refuses to allow another witness to give the same evidence.

The instructions of the court to the jury should be considered in their entirety, and if, when so considered, it appears that the charge so far as it bears upon any subject is sound, an assignment of error based upon an isolated portion of the charge will fail, even though such portion when considered alone is erroneous.

An instruction upon justifiable homicide, in which the expression 'present imminent danger' is used in lieu of the statutory phrase 'imminent danger,' may not be erroneous when considered with reference to the facts in the case.

An instruction upon the law of self-defense which directs the jury that the defense is not available unless the defendant's 'belief of danger is real,' is not erroneous, because the imminency of danger to the defendant when he struck the fatal blow must not only be reasonably apparent, but the defendant must also believe the danger to be imminent.

Instructions to the jury are required to be applicable to the evidence, and a requested instruction upon the 'defendant's theory' which is not applicable to the evidence is correctly refused.

An assault upon one with a deadly weapon is not in law ipso facto a justification of that one in taking the other's life. The existence of imminent danger reasonably apparent is a matter of fact for the jury to determine from the evidence.

An instruction, that a person who occupies the position with his employer of 'quarter boss' is clothed with no legal authority to make arrests and has no more power in that regard than any other private citizen, is not erroneous.

An instruction, which directs the jury that a 'deputy sheriff or other officer has no authority to molest, apprehend, or attempt to arrest any person, although such person may be guilty of a breach of the peace, unless such offense was committed in the presence of the deputy sheriff, or amounted to a felony, unless the deputy sheriff or other officer is authorized to make such arrest by reason of a warrant duly issued by a court of competent jurisdiction,' does not correctly state the law; but such instruction will not be deemed sufficient to cause a reversal of the judgment when the evidence shows that the defendant made no attempt to arrest the deceased.

An instruction upon the law of self-defense that the defendant may not avail himself of that defense, if he killed the deceased in a difficulty brought about by the defendant's wrongful act in being the aggressor, is not erroneous.

Evidence examined, and found sufficient to support a verdict of manslaughter.

COUNSEL Hal W. Adams and J. M. Gornto, both of Mayo, and W. B. Davis, of Perry, for plaintiff in error.

Van C. Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

The plaintiff in error, Oliver Ward, hereinafter referred to as the 'defendant,' was indicted in 1916 by the grand jury of Lafayette county for the murder of Arthur Land, which was alleged to have been committed on the 25th day of December, 1915. In Noverber, 1917, the defendant was put upon trial for the offense charged and convicted of manslaughter. He seeks to reverse the judgment of conviction and comes here by writ of error.

The errors assigned are numerous and are all based upon rulings of the court upon the admission and rejection of evidence, the giving and refusing of certain instructions, and the ruling denying a motion for a new trial.

Arthur Land was killed by the defendant under circumstances which the latter claimed justified him. The defendant was 'quarter boss' at the Standard Lumber Company's mill at Alton, Fla., and a deputy sheriff of Lafayette county. On the night of December 24, 1915, a negro came to the defendant and told him that there were 'some white men over at Jerry Franklin's house shooting at them (the negroes) and trying to make them dance.' The defendant and Otis Hunt went to Franklin's house. The defendant went in first and walked up to the fireplace where the deceased Arthur Land was standing. According to the defendant, he did not know who the man was and 'started to look under his hat to see who he was,' when the deceased 'shoved a pistol out against' the defendant's stomach, who hit him on the back of the head and knocked him down. Mr. Hunt then ran up. According to his testimony, Land fell on his face with his arms extended in front of him and with his right arm very near the fire. Hunt assisted Land to rise by taking hold of the latter's left arm and placing his own left hand upon Land's right side. Hunt 'did not notice at that time whether or not Land had a pistol in his hand' and did not notice it until Hunt saw Land's hand on Hunt's shoulder. Further testifying, he said: 'I do not know where he got that pistol from.' While the two men were standing in this position facing each other, Hunt supporting Land whose right hand or arm was on Hunt's shoulder, the defendant said:

Land 'pointed a pistol at me over Hunt's shoulder, or in my direction. I said, 'Don't you do it.' He did not stop, but kept it right there. I jumped behind Mr. Hunt and reached over his shoulder and fired.'

Land received the bullet, which was fired from a 38-caliber pistol, in the left shoulder near the neck. The bullet ranged downward and backward. He died a few days afterward from that wound. When Land's body was examined the night he was shot, his wife said:

'There was a wound on his head, and another where he was shot with a pistol. There was a skinned place on the chin and nose.'

Assignments of error from 1 to 9, inclusive, are based upon exceptions to certain testimony of a witness named Ras Mickler. Mickler testified, over the defendant's objection and exception regularly made and preserved, that a few weeks before the deceased was killed the witness had a conversation with the defendant in regard to the 'Land boys'; that Henry Land and Ward, the defendant, had had a fight, that there was another Land boy named Lonzo; they would get drunk at night and go into the quarters and 'raise much sand.' Oliver Ward was quarter boss, and said he was 'going to put a stop to it if he had to kill one of the G--- d--- sons of bitches to see how he looked dead.' The witness was asked by the state attorney if 'Ward at that time' knew the name of any particular one of the Land boys, or 'were you talking about the bunch generally'? The reply was, 'Lands in general.' The witness also testified that the defendant did not at that time indicate any certain one of the Land boys whom he might kill...