O'Steen v. State

111 So. 725, 92 Fla. 1062

• Court: Supreme Court of Florida
• Decided: December 13, 1926
• Status: Published

Opinions

Brown, J.

The plaintiff in error was indicted for murder in the first degree and convicted of manslaughter, and sentence of five years imprisonment in the state penitentiary imposed. The case is brought before us on writ of error taken to this judgment of conviction.

Only two questions are presented by the assignments of error.

The first question is based upon the refusal of the court to permit counsel for plaintiff in error to propound to the talesmen upon their voire dire examination the following question: “Gentlemen, if the defendant should take the witness stand in this case and testify in his own behalf, would you give his testimony the same consideration that you would give to the testimony of any other witness testifying in the ease?” If the court had permitted this ques tion to be propounded to the prospective jurors, it would have tended to create the impression upon their minds that it was their duty to give the same consideration and weight to the testimony of the defendant that they would accord to the testimony of any disinterested witness or witnesses whose testimony might be introduced upon the trial. While section 6080 of the Rev. Gen. Stats, makes the defendant a competent witness in his own behalf, if he desires to testify, it was not designed to have any such effect as that contended for by counsel for plaintiff in error. While he is thus made a competent witness in his own behalf, it is cex’tainly withixx the province of the jury to consider his testimony in the light of the fact that he is the defendant and as such interested ixx the result of the trial. It was held by this Court in the case of Blanton v. State, 52 Fla. 12, 41 So. 789, that a charge is properly refused which is so framed as to texxd to mislead the jury into the belief that they are bound to lend the same credence to the testimony of the accused as a witxxess on his own behalf, as to that of any disinterested witxxess. It was there said, ixx the opinion by Mr. Jxxstice TAYLOR, “The interest that a witness has in the result of a suit the law recognizes as an element proper to be coxxsidered in weighing his testimony as affecting its credibility. Hampton v. State, 50 Fla. 55, 39 So. 421. The refused instruction is so framed as to mislead the jury into the idea that they must lend the same credence to the testimony of the accused as to that of any disinterested party, notwithstanding his deep interest in the result of thé trial. Easterlin v. State, 43 Fla. 565, 31 So. 350." See also Robertson v. State, 64 Fla. 437, 60 So. 118.

The second question relates to the sufficiency of the evidence, counsel for plaintiff in error earnestly contending that the evidence in the case is not sufficient to sustain the verdict and that the court therefore erred in overruling the motion for a new trial. After a careful consideration of all the testimony, which it would hardly subserve any good purpose to review in this opinion, we have reached the conclusion that this contention is not well founded.

It is especially insisted upon in behalf of plaintiff in error that the evidence shows that he acted in self-defense when he fired the fatal shot or shots. We are of the opinion that there were sufficient grounds in the testimony for the jury to have inferred that the circumstances attending the killing of the deceased were not sufficient to have induced a reasonably cautious man to believe that such killing was necessary in order to save his own life or to save himself from great personal injury. Smith v. State, 25 Fla. 517, 6 So. 482; Barnhill v. State, 56 Fla. 16, 48 So. 251. The rule laid down in Smith v. State, supra, has been followed in a long line of eases, one of the most recent being that of Ammons v. State, 88 Fla. 444, 102 So. 642, in which' the holding of this court, as expressed in the third headnote, reads as follows: “In the prosecution of an indictment for murder where the defendant sets up the defense of self defense in that he was defending himself against an attack by the other to commit a felony and there was imminent danger of the design being accomplished, the question of apprehension by the defendant of danger is for the jury and the circumstances as they appear to the defendant must be such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necesity for taking life real. ’ ’

Some of the reasoning underlying this rule is Very well expressed in the text of 13 R. C. L., see. 121, page 816, as follows: ‘ ‘ The rule is universal that, to warrant taking ■life in self-defense, there must have been reasonable grounds for belief, upon the part of the slayer, that he was in imminent danger, of loss' of life, or of suffering serious bodily harm at the hands of the person killed. The belief need be no more than reasonable, however, and if the slayer acts in good faith and with reasonable judgment and discretion, he will be excused, even though he err. If, however, his error is due to his own fault and negligence, no belief, however, honest, will excuse his act. If through carelessness or fright, or undue excitement, he takes the life of another, when it is not necessary, and when there is no reasonable ground to believe that it is necessary, he is not excused. Such an emotional state may go in mitigation of the offense and may reduce the grade from murder to manslaughter, but furnishes no complete justification or excuse for the taking of the life. * * '* Whether reasonable grounds existed in any particular ease is a question for the jury’s determination. ’ ’

The record shows no reversible error and the judgment of conviction must therefore stand affirmed.

Affirmed.

Ellis, C. J., and Strum, J., concur. Whitfield, P. J., concurs in the opinion. Buford, J., disqualified.

Affirmed on rehearing.

Edgwr W. Waybright, for Plaintiff in Error;

J. B. Johnson, Attorney General, and Boy Campbell, Assistant, for the State.