Lane v. State , 44 Fla. 105 ( 1902 )

Mabry, J.

The plaintiff in error was indicted at the Fall term, A. D. 1901, of the Circuit Court for Sumter county for the murder of George S. Offerman, and his trial resulted áh a conviction of murder in the second degree. A |writ of error was'sued out to review the judgment and proceedings of the trial court, and numerous assignments of error are made. After a careful consideration of the entire record the court is of the opinion that the judgment must be reversed for the reasons hereinafter stated, and the conclusions on these points make it unnecessary to specifically consider assignments as to which we find no error, and some relating to irregularities in the ordering, drawing and summoning of petit jurors that need not necessarily arise again.

The trial of the accused occurred the second week of the court, and in the morning of-a day of the first week the court ordered a venire to issue for twelve men drawn from the regular jury box to serve as petit jurors for the second week of the court, and also a special venire of eighty-eight men, from which to complete a jury in the case against the accused. The eighty-eight men were also drawn from the jury-box. An irregularity occurred in the drawing of the jury, and in the afternoon of the same day, and in the 'absence of the accused from the court room, the court amended the order for the drawing made in the forenoon, and also ordered an additional special venire for jurors to serve in the case. The irregularity in the drawing of the jury need not occur in another trial, and no further reference to the assignments on this point will he made-, except to state, without deciding, , whether the irregularity was sufficient to cause a reversal, or whether the presence of the accused in cases of felony iis indisipensable at the ordering and drawing of a special venire in his case, that it is always the safest course to have the accused personally present when the ordering or drawing of a special venire is made.

The accused was book-keeper and in charge of-a store run in conection with a saw mill at the place where the homicide occurred. In detailing a® a witness in his own behalf the circumstances of the homicide, the accused testified that “Mr. Offerman came in and called for his check, and when giving it, gave out others to other parties. And in a short time he came to the place where I gave them out and said his check was wrong. I took his check and looked at it, referred it to my office book and saw it was correct there; then went to the time book, which was turned in by Mr. Steadman, and compared them; found them all to be the same. In the meantime he came around in the office where I was and said the check was not right, and I explained it to him, showing where it was, according to the time that had been turned: in to me; he said all right if the check is all right. He said it seemeid) that I wanted to kick up some disturbance about it. I told him ‘no,’ that the check was right according to the time I had received from Mr. Steadman, and I could not make it out otherwise. Then I told him I did not care to have any further talk and trouble about the matter, and to get out of the office. He hesitated a fc-w minutes. I slightly pushed him with my left hand an,d told him to get out of the office, and go on and hush; that I did not want any disturbance at all. He said he would get out of the office, and did so very slowly after I pushed him. In the meantime he was saying it was me that wanted to kick up a row. I told him, after replying to that, that I did not want to kick up any row; to go on and hush; that I had asked him as a gentleman to get out. There was some words, oaths, passed by each of us. After the talk, I had ordered him out.' I had asked him to hush, to get out; he then said he would get out if I would. There was some other oaths used by each one of us, and he was walking up and down the counter outside of the office. It hushed for a few minutes, a short time. I do not know how many minutes, only a short time; he commenced talking again about his'check, it was not he that wanted to raise the disturbance; wanted to -raise hell, I believe is the way he expressed himself. Then I stepped up and said 'no, I don’t want to raise no hell; I had asked you to get out of the office as a gentleman. Go on out Mr. Offerman; I don’t want to have any disturbance. He said he would get out, but did not leave. He walked then backward and forward up the counter. Then I cursed and told him to go out. He turned and cursed and started towards me. I was standing at the desk in my office where I had been at work after giving out the checks. Seeing him make a start towards me, and both of us using such words as we did—we did not curse each other but they were curse words by both of us, which, of course, were very hard feelings between us —seeing him start towards me, and knowing that a hatchet and deer foot were lying on the counter, which I knew he had been looking at, as his face was turned towards them quite a while, I turned to my drawer where a pistol was, took it out and fired, thinking that he was coming on me either to kill or may be beat me, I did not know which, but knowing that if he got these weapons that he would kill me and I fired.” He further stated that at the time he fired the deceased was “reaching over the counter making his way towards the office,” and he was “reaching over to where the hatchet and deer foot were lying,” and that he was “coming towards the weapons and me at the same time.” He further stated that the deceased appeared angry and excited and advanced rapidly towards the office and the hatchet and deer foot lying on the counter. The deer foot is a piece of iron about an inch in diameter and about twelve or sixteen inches long with a little split in the end used for pulling nails and 'prizing open boxes. Either the deer foot or the hatchet is capable of producing death. The accused was in what is called the office which was formed by a small railing gate at the end of the counter and the extension of boxes used for a postoffice. The gate extended from the counter to the boxes and the part behind the counter used as an office was next to the post office and near the gate. The building in which this office was located was used as a store house with counters on each side as you enter the end of the building. In answer to a question of which way he had of getting out of the office, the accused stated there were “two windows there, but both of the sash were down. I kept them down in order to keep people from, coming out from other partspf the store —heavy sash, both of them; the blinds were open, but the sash were down, and there was no way for me to get out only where Mr. Offerman was, behind the counter or out of the gate.” When the deceased was shot he was on the outside of the counter near the gate that opened into the office.

The following question was propounded to the accused, viz: “You say, Mr. Lane, that at the time you fired you ■believed from Mr. Offerman’s advancing with his hand extended that he was going to seize one of those weapons, and you at that time fired because you believed he was going to take your life or beat you; I believe you said that?” The State Attorney objected to the witness answering the question upon the ground that it was incompetent for him to testify what his belief was at the time he fired; that he could! only state what the deceased was doing. The court sustained the objection and stated in the: presence of the jury that the defendant could not testify as to his belief, to which said decision and ruling the counsel for defendant then excepted. He was then by his counsel asked to state what he did say on that line, and his reply was : “I said seeing him approach this office and approaching these things on the counter—hatchet and deer foot—that I believed he was coming to either murder me or beat me, and I had no way of getting out, or protecting myself,, only the way in which I did it.” He was further asked, “Mr. Lane, I am going to get you to state whether or not your belief on that point, or apprehension of danger was a real, honest belief on your part?”' Again an objection was made .on behalf of the State, on the ground that it was incompetent for the defendant to state in evidence his belief, or whether the same was genuine and real at the time he fired; that such evidence would be only an opinion, and therefore inadmissible; that from the surrounding facts and circumstances the jury w7ere to infer the defendant’s belief and whether the same wras reasonable. The court sustained the objection and an exception to the ruling was taken. The ruling of the court did not-go to the form of the questions propounded, but was based upon the view that the defendant could not testify to his belief, as this was a question for the jury to ascertain from all the surrounding circumstances. If the ruling can be sustained, it must be upon the ground stated by the court, as no other objection upon which it can be sustained was interposed.

The ruling excluding from the jury the testimony of defendant, that he believed under the circumstances of the case his life was in danger, or that he was in danger of receiving great personal injury, was erroneous. He had the right to testify as to. his belief' and that it was genuine—not feigned or a pretense. On the subject of self-defense our statute provides that a killing is justifiable when committed in the lawful defense of a person when there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury and there shall be imminent danger of such design being accomplished. Under this statute it has been, repeatedly held by this court that the danger need not be actual, but may be apparent. The accused is to judge from the circumstances by which he is surrounded and as they appear to him, but if he acts upon appearances and takes life, he does it at his peril, and he can not justify the killing, unless there are circumstances which would induce a reasonably cautious mán to believe that it was necessary to save his own life, or to save himself from great personal injury. Smith v. State, 25 Fla. 517, 6 South. Rep. 482; Pinder v. State, 27 Fla. 370, 8 South. Rep. 837; Morrison v. State, 42 Fla. 149, 28 South. Rep. 97. The belief of tbe accused as to the apparent necessity to kill in order to save his own life or to protect himself from great personal injury is material, and this has been announced by this court in the cases of Lovett v. State, 30 Fla. 142, 11 South. Rep. 550 and Wilson v. State, 30 Fla. 234, 11 South. Rep. 556. The following is from the Lovett case, vis: “The seventh charge was that to excuse ho'mic-ide there must exist on the part of the slayer an actual necessity to kill in order to prevent the commission of a felony or great bodily harm, or a reasonable belief in his mind that such necessity exists. The objection made to it is, that if a ground for a reasonable belief existed, it was immaterial whether the defendant believed it or not, and that the attention of the jury should not have been drawn to the existence ' or non-existence of such ground, and not to the conviction of defendant’s mind except as to a result from the presence or absence of such ground. If -there is not an actual necessity to kill in order to save one’s life or prevent great bodily harm, there must, to successfully invoke the plea of -self-defense, be such an apparent necessity as would naturally, cadse a reasonably cautious or prudent man to believe that the necessity was actual, and acting under these circumstances, a defendant will be accredited by the jury with the belief that the danger was actual, and the killing will be held excusable. The law regards homicide committed under such circumstances 6f apparent danger as done under the impelling influence of a reasonable belief that the stated necessity exists, and therefore excuses the killing the same as- if the necessity had been real, instead of merely apparent; hut it does not regard the belief as immaterial. Smith v. State, 25 Fla. 517, 6 South. Rep. 482. If it did, the principle would be to justify homicide when the slayer does hot feel that there was any necessity to kill.” In the Wilson case it is held that there must he both a belief and reasonable ground to believe. An abundant authority supports the view that the belief of the defendant is material and that a defendant when a competent witness may testify as to its existence in good faith. Commonwealth v. Woodward, 102 Mass. 155; Wallace v. United States, 162 U. S. 466, 18 Sup. Ct. Rep. 859; Duncan v. State, 84 Ind. 204; Wohlford v. People, 148 Ill. 296, 36 N. E. Rep. 107; Taylor v. People, 21 Col. 426, 42 Pac. Rep. 652; State v. Evans, 33 West Va. 417, 10 S. E. Rep. 792. An accused in this State is made by statute a- competent witness in his own behalf, and can, ' of course, testify to any material facts. The danger, however, must be imminent, that is immediate, and the belief, to avail an accused, must be based upon such a state of facts as to justify a reasonably cautious person to apprehend a design to commit a felony or do some great personal injury. In Padgett v. State, 40 Fla. 451, 24 South. Rep. 145, and in Morrison v. State, sufra, this court approved an instruction to the effect that unless such belief of danger is reasonable, that is,, unless a reasonably cautious man would entertain the same belief from* the .same appearances, it will be no defense, even though it was an honest belief of danger. The belief must, therefore, be based upon facts justifying it. The view of the Massachusetts court, expressed in the case cited, is as follows.: “The proposition upon which this defense, must rest, and which was in fact submitted to the jury, consisted of two branches; one the reasonable cause, the other the actual apprehension or thought of defendant and his purpose'or intent. Both must exist, or neither will avail. In determining whether the evidence of an actual apprehension of bodily harm is admissible, the court can not be governed, by its own conclusions fr,om the testimony as to the sufficiency of the proof of reasonable cause; but if there is any testimony which, if believed, would warrant the jury in finding that there was such reasonable cause, though it comes from the defendant alone, and is in conflict with all the other evidence in the case, it is sufficient to entitle the defendant to testify in support of the other branch of the proposition, that he did in fact act under such an apprehension.” The rule stated by the Supreme Court of the United States in the case cited is, that if the accused believed, and had reasonable ground for the belief, that he was in imminent danger of death or great bodily harm from the deceased at the moment he fired, and if that belief, foundled on reasonable ground, might in any view >the jury could properly take of the circumstances surrounding the killing, have excused Ms act or reduced the crime from murder to manslaughter, then it would be error to refuse to allow the accused to testify as to his belief based on the circumstances to which he testified. After a careful consideration of the circumstances attending the hómicide in this case, as testified to by the accused, we are of opinion that it was error for the court to rule that the accused could not testify as to his real belief based thereon. We do not express any opinion as to the credence the jury should give to his testimony in connection with the other evidence in the case, as this is a question for the jury. It appears from the statement made from defendant’s testimony that he did state, without any objection being made thereto, that he believed his life was in danger, which idea was embodied in intsructions given by the court to the jury, and on the cross-examination of the accused he was interrogated as' to whether the facts stated by him were the only basis for such belief. If the ruling of the court in rejecting the proposed evidence constituted the only error in the case, we would hesitate about reversing the judgment on that account, in view of what the defendant did testify to on the point of belief. The ruling made, however, was error, and it should be avoided in the future.

The accused introduced evidence of good character as a peaceable citizen, and in rebuttal the court admitted some evidence as to specific acts of lawlessness by him. In view of the subsequent ruling of the court excluding such evidence from the consideration of the jury, we do not deem it necessary to say anything on this point.

By a charge prepared and given by the court to the jury they were instructed that “before a person can avail himself of the defense that he used a deadly weapon in defense of his life and be justified, he must satisfy the jury that the defense was necessary at the time; that he did all he could to avoid it, and that it was necessary to protect his own life, or to protect himself from such great bodily harm as would give him a reasonable apprehension that his life was in immediate danger.” This instruction was evidently copied from the eleventh, head-note in the case of Gladden v. State, 12 Fla. 562. That case was decided in 1868 on common law principles, before the statute on the subject of homicides was passed in that year. In Dukes v. State, 14 Fla. 499, decided in 1874, it was pointed out that the statute had made important changes as to the law of homicide, and several decisions have since been made in reference to such changes. In Adams v. State, 28 Fla. 511, 10 South. Rep. 106, decided in 1891, decisions rendered up to that time on changes made by the statute are referred to and attention called to them. In the case of Hubbard v. State, 37 Fla. 156, 20 South. Rep. 235, substantially the same charge as given in the present case was declared to be erroneous, and there can be no doubt that such an instruction under our statute is wrong. It is wrong for the two reasons given in the Hubbard case a® well as another. It i® a specific charge on the subect of self-defense and imposes upon the defendant the duty of satisfying the jury that the defense was' necessary. The jury need not be satisfied. If the. evidence raises a reasonable doubt it will be sufficient. Furthermore, if the circumstances are such as to authorize a reasonably cautious man to believe his life to be in immediate danger, or 'that he was in immediate danger of receiving great personal injury, it will suffice, though an actual necessity to kill does not exist. The charge also conveys the idea that if a deadly weapon is used in defense of life the accused must satisfy the jury that the killing was necesary to protect life 'or to protect the slayer from such great bodily harm as would give him a reasonable apprehension that his life was in immediate danger. The statute justifies the killing when done under circumstances authorizing it to protect life or the slayer from great personal injury. The charge is clearly wrong, and after mature reflection we are of opinion that we can not safely hold that its error was fully corrected by other instructions given, or that it was entirely harmless. The court charged on the different degrees of murder, and of what was manslaughter, and submitted to the jury what should be their verdict if they believed from the evidence certain hypothesized states of fact deducible from the evidence. In charge number twelve the jury was instructed as to the presumption of innocence in favor of the accused until he was proven guilty beyond a reasonable doubt, with an explanation of what was such doubt. The erroneous charge above referred to was numbered fourteen and is special on the subject of self-defense and of the use of a deadly weapon in defense of oneself. On the subject of whether the necessity must be real, or apparent only, the court gave several instructions expressing the. view that if the circumstances were such as to justify a reasonably cautious man to believe that his life was in immediáte danger, or that he was about to receive great personal injury, he would be warranted in killing, though the necessity to do so did not in fact exist, but no direct reference was made in such instructions to the use of a deadly weapon or to what extent the personal injury should! go, and no reference to the sufficiency of the evidence in such a case as to a reasonable doubt. Some of the instructions in a general way directed the jury that defendant was presumed to be innocent until the evidence established his guilt beyond a reasonable doubt, but there was no specific instruction that in case a person uséd a deadly weapon in defending himself it will be sufficient if the evidence raises a reasonable doubt in favor of a lawful defense. In the case of Hubbard v. State, supra, the judgment was reversed for giving susbtantially the same charge, regardless of other general instructions in the case. Murphy v. State, 31 Fla. 166, 12 South. Rep. 453, is referred to in support of the ruling, and in that case the court instructed the jury that “where an aWbi is set up, the burden of proof is on the defendant, but he is not bound to prove it beyond a reasonable doubt, and if upon consideration of all the evidence in the case, you have a reasonable doubt that defendants, or either of them, was present when the crime was committed, they, or such of them as to whom the doubt applies, should be acquitted. The proof of an alibi must include and cover the entire time when the presense of the accused was required to commit the offense charged. The evidence to support it chould be carefully considered, and must be such as to satisfy the jury that the crime could not have been committed by the person offering proof of the .alibi.” The court said “in our judgment the last sentencie in the charge is erroneous, and calculated to qualify the correct rule announced above, in that the proof of an alibi is sufficient if it, considered in connection with all the testimony, raises a reasonable doubt as to the presence of the accused at the time of the commission of the crime.” In the case of Trogdon v. State, 133 Ind. 1, 32 N. E. Rep. 725, it was held that “while it is true that instructions must be considered as a whole, and it is sufficient if taken together they state the law correctly, yet general instructions given can not cure an error committed in giving a specific instruction.” It iisi the rule dn this court that in determining the correctness of charges they must be considered as a whole, but where a special charge in itself announces a patently erroneous proposition of law,, it must affirmatively and clearly appear that the presumptive harm caused* thereby has been entirely removed or the judgment should be reversed. We do not ¡see that we can safely affirm that the erroneous features of the specific charge in' reference to the use of a deadly weapon in self-defense have been entirely cured and removed by other instructions given.

The court instructed the jury at the request of the State that “if you believe from the 'evidence that there was no overt act by the deceased, and no evidence which at least tends to show that the deceased had at the time of the killing in fact or apparently .sought a'conflict with the accused, or was actually or apparently making some demonstration of attack towards the accomplishment of his threats, some demonstration reasonably calculated to induce the belief that the execution of the threatened attack had actually commenced, then you can not take into consideration any threats made prior to the meeting and especially when they were not communicated to the accused.” This charge is apparently extracted from the views announced by this court in the case of Garner v. State, 28 Fla. 113, 9 South. Rep. 835, in stating the rule for the guidance of the trial court as to the admissibility of previous threats. In the present case the testimony on the part of the State did not apparently afford any foundation for the introduction of threats, but that introduced for the defense, shown by the stated evidence of the defendant, was the basis for the introduction of some threats made by the deceased not long before the killing. When there is no proper predicate for the introduction of threats, as explained in the Garner case, they amount to nothing as evidence in the case, and should be excluded from the consideration of the jury. When they are admissible as dependent upon the commission of an overt act on the part of the deceased, there must be some evidence of the overt act; that is, there must be evidence which at least tends to show that the deceased had at the time of the killing in fact, or apparently sought a conflict with the accused, or was actually or apparently making some demonstration of attack towards the accomplishment of his threat or some demonstration reasonably calculated to induce the belief that the execution of the threatened attack had commenced. There must be at least apparently such a demonstration of an intention to execute immediately the threats as will naturally induce a reasonable belief that the party threatened will lose his life or suffer great personal injury if he does not immediately take the life of his adversary. Under such circumstances threats are admissible because they serve to explain the overt act or demonstration. and show the reasonableness of the defendant in believing himself to be in that danger which justifies the taking of life in self-defense. Where the theory of the prosecution and its testimony afford no basis for the introduction of threats, but the evidence for the defense does authorize their introduction and they are admitted, it would not be error for the court to submit to the jury the view that if they accepted the theory of the prosecution, to the exclusion of that of the defense, they should disregard the threats entirely, but where the threats are properly before the jury the court should be careful in submitting the question of their disregard as evidence. If a charge should accurately hypothesize the facts relied on by the defense as affording a basis for the use of threats as evidence and submit the view that if they were disbelieved the threats might be rejected where the counter testimony c'f the State was accepted, no harm could result. The charge given by the court asserts the view that if there was no overt act by the deceased, and no evidence which at least tends to show that the deceased had at the time of the killing in fact or apparently sought a conflict or was actually or apparently making some demonstration of attack towards the accomplishment of his threats, &c. The charge seems to submit that if there was no evidence on the point, not that if the jury disbelieved what had been introduced. The court had admitted the threats in evidence on the showing made for the defense, and the defendant had a right to have it considered in connection with such showing without any intimation from the court that such evidence did not exist. If the court sees proper to charge for the State on the effect of the threats qs evidence, what is said will enable it to adjust the charge to such state of facts as may arise in the trial. The charge given was followed by one for the accused on the same subject, and the two taken together afford, probably, no just ground for the complaint made by counsel for defendant against the one given at the instance of the «State .

The judgment will be reversed and a new trial awarded, and it is so ordered.