Fortner v. State ( 1935 )

An extensive review of the evidence in this case would contribute nothing of permanent value to the jurisprudence of this State, hence will be omitted from this opinion.

Plaintiff in error, Parker Fortner, being dissatisfied with a sentence to ten years' hard labor imposed on him pursuant to his indictment, trial and adjudication of guilty of assault with intent to commit manslaughter alleged to have been by him perpetrated upon one Jimmie Oswald with a knife, places his chief reliance for reversal upon the doctrine heretofore laid down in Council v. State, 111 Fla. 173, 149 Sou. Rep. 13, wherein this Court held that a conviction for assault with intent to murder will be reversed for legal insufficiency of the evidence, where the evidence upon which the conviction was obtained bears earmarks of falsehood and uncertainty that stamp it as wholly unreliable as a predicate upon which to adjudicate an accused guilty of a serious felony.

Fortner's case now before us on appeal is in all of its essential particulars and circumstances analagous to that of Ed. C. Baker v. State, 84 Fla. 277, 94 Sou. Rep. 613, wherein the evidence was examined and found not to warrant a verdict of assault with intent to commit murder in the second degree of which the defendant has been found and adjudged to be guilty.^*

On authority of Council v. State, supra, and Raker v. State,supra, the judgment in this case is reversed for a new trial.

WHITFIELD, C. J., and TERRELL and BROWN, J. J., concur.

BUFORD, J., dissents.

^* The intent is the gist of the offense here charged. The evidence shows without contradiction that the defendant did not use, nor attempt to draw, his knife from his pocket until after he had been first knocked down by the alleged assaulted person and then not until that person was on top of him engaged in the act of beating him up while holding defendant down on the ground. In order to sustain a conviction for assault with intent to commit any degree of unlawful homicide the intent tokill must be proved beyond a reasonable doubt. Newborn v. State, 73 Fla. 1064, 75 Sou. Rep. 581. And where it appears that a deadly weapon, such as a knife, was used simply as a cutting instrument against a combatant in the heat of a personal conflict, to repel the superior physical force of the other combatant so as to make such other party desist from his attempt to use his superior physical force to beat up his adversary, a case of aggravated assault under Section 7163 C. G. L., 5061 R. G. S., may be made out, if it appears that the knife wielder was not entitled to plead self-defense. But the charge of assault with intent to commit homicide in any degree will fail in such cases for lack of proof of the required specific homicidal intent, unless a homicidal intent be substantially proved, either by direct, or circumstantial evidence, extrinsic of the bare fact of cutting with a knife, such as by proof that the knife when used by the assailant was directed at the vital spot on the opposite party's body, or that the wielder of the knife affirmatively showed his intent to kill by expressing it, such as by saying, "I am going to kill you," etc. Whether the use of a knife proves aggravated assault or assault with intent to commit murder or manslaughter is a question to be decided by the jury under proper instructions.