Wilson v. State, 4150

• Decision Date: 24 February 1965
• Docket Number: No. 4150,4150
• Citation: Wilson v. State, 171 So.2d 903 (Fla. App. 1965)
• Parties: Arthur WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 903

171 So.2d 903

Arthur WILSON, Appellant, v. STATE of Florida, Appellee.

No. 4150.

District Court of Appeal of Florida, Second District.

Feb. 24, 1965.

John J. Duffy, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

FARRINGTON, OTIS, Associate Judge.

Appellant Arthur Wilson, seeks reversal of the judgment of conviction and prison sentence imposed pursuant to a jury verdict finding him guilty of murder in the sedond degree.

At the trial Wilson admitted the fatal shooting of John Henry Cannida, but testified that he shot Cannida with a pistol in self-defense while trying to retreat from the scene following an argument punctuated with curses, threats to kill and menacting gestures on the part of Cannida, a man whose reputation for unrestrained violence was well established by the testimony. The State's witnesses testified that Wilson left the scene of the argument, returned with a gun, and without further provocation shot Cannida. By its verdict the jury rejected the version of defendant and his witnesses. Defendant's version, if believed, would have entitled him to acquittal by reason of his right of self-defense.

Appellant's main contention is that the trial judge committed error by charging the jury as follows:

'For the defendant to justify the act of killing on the ground of self-defense, he must have used all reasonable means within his power and consistent with his own safety to avert the danger--avoid the danger, and avert the necessity of killing the decedent. The aggressor in a personal difficulty--one not reasonably free from guilt--can never be heard to acquit himself of the liability for its consequences on the ground of self defense, unless after provoking such difficulty he in good faith withdraws in such manner as to show his adversary his intention to retire and cease the difficulty. A necessity brought about by a party who acts under its compulsion cannot be relied upon to justify his conduct. The law of this state prohibits the use or the carrying around or having in manual possession a pistol without a license given by the County Commissioners as directed by the law. The defendant in this case is not charged with carrying a pistol. He is charged with Murder in the Second Degree as charged in the Indictment. This is a circumstance, however, that you as jurors may consider as one of the circumstances of the case.' (Italics added.)

Attorney for the defendant made timely objection to the portion of the court's charge relative to the illegality of possession of a pistol without having obtained a license from the County Commission on the grounds that is was without basis in the testimony and was prejudicial to the defendant.

There was no evidence introduced at the trial as to whether or not Wilson had a license or permit to possess the pistol. In response to questions asked by the judge, Wilson testified that he had bought the pistol nine or ten years previously for self-protection in his home, and had put the gun in his car because he was going fishing that night. He added that it was his custom to take either a rifle or pistol on fishing trips because he would be out in the woods at night.

Since the italicized portion of the quoted instruction immediately followed the judge's explanation of limitations on the right of self-defense, the language used was capable of suggestion to the jury that Wilson was in illegal possession of the death gun, therefore not reasonably free from guilt, and therefore foreclosed from claiming that he killed in necessary self-defense. So interpreted, the language in question was capable of causing the jury to apply incorrect principles of law in rejecting Wilson's assertion that he acted in self-defense. A person justified by perilous circumstances in using a weapon in self-defense, would not be deprived of such right by reason of being illegally in possession of the weapon used.

The italicized...