— The plaintiff in error was convicted of the murder of Arnold Mitchell in tiie Circuit Court for Walton County during January of 1919 and sentenced to suffer the penalty of death. He seeks here a reversal of the judgment on writ of error.
There are over one hundred and thirty-three assignments of error numbered from one to one hundred and thirty-one, two numbers, 87 and 106, being repeated. Many of the assignments of error are duplications. Assignments from seven to ñfty-eight are repeated in assignments numbered from sixty-two to one hundred and eleven, which attack the court’s refusal to give certain requested instructions to the jury. Assignments numbered from 118 to 131 attack the charge given by the court. Other assignments of error attack the sufficiency of the evidence to support the verdict and the court’s rulings in the admission and rejection of evidence.
The facts in the case are few. The circumstances of the homicide which were exceptionally harsh to the point of brutality are practically undisputed in any detail. The defense was that the defendant was under the influence of alcohol or some intoxicating liquor to that degree where it could legally be said that he was insane and therefore irresponsible for his act, or was incapable of entertaining a premeditated design to take the life of the deceased or any person and therefore could not be guilty of murder in the first degree.
On the night of December 25th, 1918, Charlie Carter, father-in-law to the deceased, who was living with him at the time, gave a party at his home at which many people
There was much evidence as to the defendant’s habits of drink, but as to his intoxication on the night of the homicide the evidence was conflicting. The evidence of the man’s insanity was sought to be established by witnesses in the neighborhood and vicinity, who had known him for years and observed his conduct. These witnesses said in substance that the defendant had drunk whiskey since he was about fifteen years old, that of late years he had consumed more than usual; that when he was not drinking “he didn’t act so curious;” that since he had been drinking so heavily of late “he acted like a different man;’’ that as the years went on the defendant’s habit of drinking intoxicating liquors became “worse and worse” and he acted “less like a man in his mind.” One witness, Bell Knowling, who ivas first cousin to the defendant, and who was with him a great deal, a kind of companion, or comrade, said that the defendant was a “pretty heavy drinker,” that he had had the habit of drinking about “five or six years;” that some time before “Mitchell was killed he (defendant) had been worse than he had been before;” that the defendant’s “conduct had changed from what it had been in other years after he got to drinking so heavily. It had changed a little bit, I mean by that, his ways and acting. He acted a little different from what he used to. There was a little difference in his ways and acting from what it used to be. He acted like he had less sense, less sense than he used to have.” The witness said that in his opinion the defendant’s “mind was bad.” The defendant drank some whiskey that night, he danced, but “staggered like a drunken man.’’ Other witnesses saw the defendant at the dance, but could not
The jury decided with all the evidence before it that the defendant on the night of the homicide, when he killed the deceased, was not insane, that he committed the act from a premeditated design to take the life of Arnold Mitchell and was guilty of murder in the first degree. After a careful review of the eviednce and consideration of its probative force and bearing upon the unfortuante affair of that night in December, ,we are satisfied that the verdict was amply sustained by the evidence.
The first assignment of error attacks the ruling of the court in overruling the defendant’s challenge for cause of the juror Hinzie. The record does not show that a
Mathis vs. State 45 Fla. 46, 34 South. Rep. 287; Denham vs. State 22 Fla. 664; Lambright vs. State 34 Fla. 564, 16 South. Rep. 582; Peaden vs. State 46 Fla. 124, 35 South. Rep. 204; Colson vs. State 51 Fla. 19, 40 South. Rep. 183; Melbourne vs. State 51 Fla. 69, 40 South. Rep. 189.
, The question of the qualification of a venireman is a judicial one and is addressed to the court’s discretion,
A photographer on January 15th, following the homicide, made two photogrraphs, one of the Carter house and the other of the room in the house where the homicide occurred. When the latter picture was taken some one placed on the door of the room two pieces of paper, one to indicate where Mr. Carter fell when he was shot, and the other to indicate where the deceased fell. It is not clear what purpose was served in introducing this evidence, as there was no dispute as to the house or room in which the alleged crime occurred. No denial in the evidence that the defendant did the shooting, nor that Carter, the host, was shot and fell upon the door and that Arnold Mitchell was killed. After these photographs were admitted in evidence and it was explained by the witness what the white spots in the photograph were caused by, the defendant’s counsel objected to “so much of the pictures as contained said white spots and moved the court to strike the testimony about the papers being placed where the bodies lay and to exclude from the jury the white spots in the pictures as parts of the evidence.’’ There was no ruling upon this motion, consequently no exception. The objection to the evidence was not made until the photographs had been admitted. The motion to strike the testimony about the papers being placed where the bodies lay was a little indefinite and might have been granted', but how the white spots in the pictures could be excluded without excluding the photographs is not clear. However, no error is made to appear, as the bill of exceptions does not show that any ruling was made on the motion. If the evidence was permitted to stand, it could have worked no injury to
The sheriff of Walton County testified that on the morning of December 26th, the defendant came to him in company with another and told him, the sheriff: “That there was some shooting out at Mr. Carter’s.” The defendant’s counsel moved the court to exclude that statement from the evidence. The motion was overruled, and that action of the coui’t is assigned as the third error. There was no error in this ruling. Every word a defendant utters before or after arrest is not a confession of guilt. Sometimes the statements are self exculpatory and many times noncommittal. The statement that there had been some shooting at Mr. Carter’s certainly inculpated no one and appeared to be entirely voluntary, as the defendant seemed
The assignment of error is not sustained. The character of the defendant’s statement to the sheriff does not support the theory upon which the argument is made in support of the assignment.
During the progress of the trial the defendant’s counsel introduced several witnesses, some of whom were relatives, others acquaintances and friends of the defendant, and sought by such witnesses to .ascertain whether the defendant was sane or insane at the time he killed the deceased. This information, was to be based on the opinions of the several witnesses, who, knowing the defendant as a boy and later as a man, had observed his conduct, watched his career, observed his manners and noticed his bearing and conversation, were supposed to speak with a reasonable degree of scientific accuracy as to his mental condition at the time ¡he killed the deceased. At first the offer to supply this kind of evidence upon the question of the defendant’s sanity was declined by the court, but later the court revised its ruling and permitted defendant’s counsel to recall his witnesses and obtain their vilws as to the soundness of defendant’s mind. The defendant’s counsel then recalled James Hall,, a brother of defendant; Henry Knowling, an uncle; William Crowder and Mrs. Colvin, defendant’s mother. These witnesses all testified that in their opinion the defendant was of “unsound mind,” or “not in his right mind,” or “not right at times.” The Court stated that the witnesses should detail all the facts they knew concerning the defendant and what they had observed with reference to his conduct. The first witness examined after- the announcement of this rule-stated that he could not point out any acts now, but the
Assignments of error numbered four, five and six, based upon the rulings above referred to, are not sustained.
Counsel for plaintiff in error discuss together assignments of error numbered 7, 8, 9, 11, 12, 13, 14 and 19. The
The assignments of error referred to above are based upon the refusal of the court to give certain special instructions requested by the defendant and numbered, respectively, one, two, three, five, six, seven, eight and thirteen. The refusal of the court to give these instructions constitutes some -of the grounds of the motion for a new trial and is again assigned as error under other and differently numbered assignments. Such duplications in the assignment of errors frequently occur and render the consideration of the case here very tedious, even difficulty, and the transcript and briefs unnecessarily large and expensive. The instructions above referred to, which were refused by the court, are upon the same subject, that is to say, they involve one principle only. They express the idea that where one is tried upon a criminal charge, and any portion of the evidence which is necessary
This instruction in substance was disapproved in the case of Cook v. State, 46 Fla. 20, 35 South. Rep. 665; Bryant v. State, 34 Fla. 291, 16 South. Rep. 177; Ernest v. State, 20 Fla. 383; Lovett v. State, 30 Fla. 142, 11 South. Rep. 550. The trial court correctly and fully instructed the jury upon the law of a reasonable doubt, and explained that such doubt might arise upon a full and fair consideration of all the evidence. The requested instructions were not only properly refused because the court had instructed the jury upon the subject of a reasonable doubt and was not required to repeat the same principle of law in different form and couched in different phraseology, but the requested instructions were misleading, if not. insiduous. Although this court had said that a reasonable doubt cannot arise from considering “a part or parcel” of the testimony, these instructions seem to advise the jury that it might consider any portion of the evidence upon any material -question involved, and if the portion so considered was not believed to be true beyond a reasonable doubt the defendant should be acquitted. It often occurs that several witnesses are called to establish one- or more essential elements of the crime charged, the testimony of each witness i's a “portion” of the evidence, the jury may not believe a certain witness, they may doubt his veracity and yet believe what others have testified to on the isame point, yet under the rule announced in the requested instructions the defendant should be acquitted, notwithstanding the jury upon consideration of all the evidence would entertain no reasonable doubt of guilt. As the court said in
The principle announced in the case of Gavin v. State, 42 Fla. 553, 29 South. Rep. 405, that proof beyond a reasonable doubt must be had as to all facts necessary to make out the case of the prosecution, in a criminal case, does not afford any argument in support of the requested charges, which deal not with any essential fact to be proved, but with any portion of the evidence as to such fact.
After considering all the evidence in the case, if the jury has a reasonable doubt as to the existence of any fact necessary to constitute guilt on defendant’s part, there should be an acquittal. But this is not the meaning of either one of the eight charges requested. The able discussion of these charges by counsel for plaintiff in error fails to convince us that the court departed from any sound rule or denied the defendant any right in this particular. The fact that it required ten pages of counsel’s brief, practically without citations of authority to take up space, in which to explain the phraseology of these requested' charges, is in itself almost sufficient proof of the involved and entangling terms in which they are framed.
Requested instruction number four was refused, and complaint is made of that ruling under the tenth assignment of error. The charge declared' that the law presumes the defendant to be innocent, that the presumption goes to the jury as independent evidence and there can' be no conviction until the presumption is overcome by proof beyond a reasonable doubt of defendant’s guilt, and unless it is so overcome he must be acquitted. The court instructed the jury that the defendant was presumed to be innocent until his guilt was proven be
Assignments of error numbered 15, 29, 30, 45, 46, 49, 50, 54, 55 and 56 are discussed together. These assignments attack the rulings of the court in which it refused certain requested instructions in defendant’s behalf. These assignments are repeated in those numbered 70, 84, 85, 99, 100, 103, 104, 107, 108, 109. These requested instructions were designed not only to emphasize the thought to the jury that the verdict should be unanimous, but to segregate the jury into twelve parts and confine the doctrine of reasonable doubt to each part,' that there could be no verdict of guilty unless each juror believed the defendant to be guilty beyond a reasonable doubt, that if any one or more of the jurors had such doubt after considering all the evidence, the defendant could not be found guilty. At the request of defendant’s counsel, the court gave the following charge: ‘It is the duty of the jurors severally and separately and jointly to weigh and consider the evidence and determine whether or not in their joint and several minds they believe from the evidence that defendant is guilty and there can be no conviction until the entire jury believe from the entire evidence and beyond a reasonable doubt that he is guilty.” Counsel in their brief say that they are “impressed” that this charge in substance covers those which were requested and refused upon this subject, but they do not concede it. We think it does. The law does not require the court to repeat its charges. -When a proposition of law is embraced in a charge which clearly conveys the thought to the minds of the jury, it is not error for the court to refuse other instructions embracing in substance the. same thought but in different phraseology. See Pinson v. State, 28 Fla.
The principle announced in the requested instructions, however, was disapproved in the case of Boyd v. State, 33 Fla. 316, 14 South. Rep. 836; Barker v. State, 40 Fla. 178, 24 South. Rep. 69; Ayers v. State, 62 Fla. 14, 57 South. Rep. 349.
To attempt to confine the doctrine of reasonable doubt to individual jurors, or that segregates the jury as a body into individual members and requiring each of such members to be free from reasonable doubt before they can return a verdict is error. Such is the language of the. headnote in the case last cited. This very thing the refused instructions' undertook to do, and though the court did give an instruction, the effect of which would be that which this court has disapproved, the instructions was given at defendants’ request for his benefit and he cannot now complain.
Assignment of error numbered sixteen is based upon the court’s refusal to give charge numbered ten requested by defendant. This asisgnment is also covered by number 71. The requested instruction is upon the subject of the “diseased mind” of the defendant which it was. contended at the trial was caused by the habit of drinking alcoholic liquors. The instruction is not clear and is calculated to mislead. It advises the jury that although they may not be satisfied from the evidence that the defendant was of “diseased mind from the habit of' drinking alcoholic liquors” when he killed Mitchell, if he
It is conceded that the instruction Is “involved.” It is not only involved in the sense that it is complicated and entagled in confusing and misleading words, but if it bears the interpretation contended for by counsel for plaintiff i'n error, the law was correctly and fully given by the court in other charges.
We have examined carefully all the charges given by the court as well as those requested by the defendant’s counsel and refused, which cover the subject of drunkenness and insanity, and we are of the opinion, that the court by charges appropriate to the evidence submitted to the jury for their determination, the question whether the accused at the time of the unlawful act with which he was charged, had a sufficient degree of reason to know that he was doing an act that was wrong. See Cochran v. State, 65 Fla. 91, 61 South. Rep. 187; Davis v. State, 44 Fla. 32, 32 South. Rep. 822; Copeland v. State, 41 Fla. 320, 26 South. Rep. 319.
In the Davis case, supra, this court adopted the rule laid down in McNaghten’s case, 10 Clark and Finley, *199, text pp. 209-211, as to insanity as a defense to crime. If the accused at the time the act in question rvas committed had the use of his understanding so as to know that he was doing a wrong act, he was in a sound state of mind. The idea is also expressed in these words in the Davis case: “If the accused was conscious that the act
In the case last cited, this court, speaking through Mr. Justice Whitfield upon the subject of drunkenness as excusing the commission of an unlawful act or relieving from .its consequences, said: “Intoxication does not excuse or mitigate any degree of unlawful homicide except murder in the first degree, unless as a result of such intoxication there be a fixed or settled frenzy or insanity either permanent or intermittent.” “If excessive and long continued use of intoxicants produces a mental condition of insanity, permanent or intermittent, which insane condition exists when an unlawful act is committed, such insane mental condition may be of a nature that would relieve the person so affected from the consequence of the act that would otherwise be criminal and punishable.”
In the case of Garner v. State, 28 Fla. 113, 9 South. Rep. 835, it was said that voluntary intoxication is a matter for consideration with reference to the ability of the accused to form or entertain a particular or specific intent essential to an offense. That as between murder in any degree below the first and manslaughter, voluntary intoxication plays no part. “The only purpose,” said the court, “for which it is admissible is to show an absence of a premeditated design to kill or that the killing was not murder, in the first degree, and the onlj
We will briefly review the charges given by the court to the jury in this case, to the .end that it may be shown that the law on the subject of intoxication as an excuse for the commission of an unlawful act was fully given in charge to the jury.
The court charged the jury fully upon the subject of' a premeditated design as an element in the crime of murder in the first degree and that before there could be a conviction of the defendant the jury had to find beyond a reasonable doubt that the defendant killed the deceased from a premeditated design to take his life. That if the defendant unlawfully killed the deceased and at the time was under the influence of liquor voluntarily taken by him, his intoxication Avould be no excuse for committing the act, unless such intoxication deprived the defendant at the time of the killing, of the mental capacity to form a premeditated design or malicious purpose to kill in which case the defendant may be found guilty of murder in the second degree or manslaughter. The court said that voluntary intoxication hot resulting-in a fixed or settled frenzy or insanity either permanent or intermittent does not excuse or mitigate any degree of unlawful homicide beloAv murder in the first degree.
“While the mental effects of a mere intoxication, may not excuse the commission of an unlawful act or relieve from its consequences, yet if excessive and long continued use of intoxicants produce a mental condition of insanity permanent or intermittent and that such insane condition exists when an unlawful act is committed, such in
At the request of the defendant the court instructed the jury that if the defendant was drunk when he committed the homicide, so that he was unable to entertain the “purposes or designs or to exercise the mental facultéis necessary for the commission of the crime of murder in the first degree, then the jury could not convict him of murder in that degree.” They were also instructed that voluntary .drunkenness on the defendant’s part at the time of the killing would excuse him from the charge of murder in the first degree if he was -incapable of exercising his mental faculties which must be exercised to commit murder in that degree; also that before the jury could find the defendant guilty, they must believe beyond a reasonable doubt that he possessed a mind sufficiently free from disease to enable him at the time of the killing to exercise the mental function which must be exercised in the perpetration of murder in one of its degrees or manslaughter.
Charges were requested by defendant embracing the same view of the law upon the subject of intoxication as an excuse for the commission of a crime requiring a cer
The question as to what degree of irresponsibility should constitute incapacity to commit a criminal act was fully discussed in the case of Davis vs. State, supra. It was there pointed out that in the absence of a statute defining such degree of irresponsibility the common law rule should govern. In 1903 the Davis case was followed on this question in Williams vs. State 45 Fla. 128, 34 South. Rep. 279, and again in 1913 in Cochran vs. State, supra. The question seems to have first engaged the attention of this court in 1899, where in Copeland vs. State 41 Fla. 320, 26 South. Rep. 319, the doctrine in the McNaghten case, supra, was first referred to as announcing the correct rule. For nearly twenty years the doctrine of “moral insanity’-’ has been expressly repudiated in this State and in the meantime legislatures; have assembled and adjourned without enacting that doctrine into law. If it is true that there can be such a condition of mental irresponsibility on the part of any person that
Assignments of error numbered 20, 24, 25 and 38 attack the ruling of the court in refusing instructions numbered 14, 18, 19 and 32. The above assignments are also duplicated by those numbered 75, 79, 80 and 92. Some of these charges express the idea that the jury are the
Assignments numbered 21, 26,27,32, 43, 48, 51,, 52, 53 and 60 are next considered. These raise the question of the correctness of the court’s refusal to give requested instructions numbered 15, 20, 21, 26, 37, 42, 45, 46, 47 and No. c. The same questions are also presented by assignments numbered 76, 81, 82, 87, 97, 102, 105, 106, 106-b. These requested instructions dealt with the subject of reasonable doubt which was fully covered by the court in its general charge and they sought to apply an abridged interpretation of the rule in cases of circumstantial evidence, which was not applicable to the facts in this case. Some of them seemed to place the burden upon defendant of establishing his innocence, by putting the affirmative side of the rule of reasonable doubt, as for instance “No. 47. If every aspect of the evidence when duly weighed and considered supports a reasonable supposition that defendant is innocent he must be acquitted,” which we think would have constituted error to have given. The court charged the jury fully on the subject of a reasonable doubt. The defendant got the full benefit of his right to have the jury informed upon this subject, he also had full benefit of the law of presumption of innocence, the charges requested could have produced no other effect than to confuse perplex, obscure the true principle
The refusal to give the sixteenth instruction requested is made the basis of the 22nd and 77th assignments of error. The instruction directed the jury that when a state witness exhibited bias or ill will toward the defendant, or gave evidence which the jury did; not believe, it was never-the less their duty to “weigh the evidence of such witness in the light of such bias or ill will and accord it such weight or credibility as they think it entitled to,” etc. In many typewritten pages of high sounding phrases and “learned talk” counsel undertakes to demonstrate the correctness of the above charge from a standpoint of logic and the “cannons and recognized forms of thought anc! reasoning.” We think the charge is bad, because if the jury does not believe the testimony of a witness because of his ill will or bias or for other reason then the jury is not required for any reason to give such testimony any credibility or weigh it at all. The court fully and correctly charged the jury as to its duty and privileges in the matter of weighing evidence and estimating the credibility of witnesses. There was no error in refusing this charge.
The 28th and 88th assignments of error are based upon the court’s refusal to give instruction numbered 22 as requested by the defendant. This instruction directed, the jury to acquit the defendant of murder, if they were reasonably satisfied that he did not have “understanding or
The 34th,. 35th and 89th assignments of error are based upon charges numbered 28 and 29, requested by the defendant and refused. In the case of charge numbered 28, counsel admits that it is “universally condemned by the decisions of. the Florida Courts,” but that the State of Alabama holds differently. As to the- 29th requested instruction, counsel admit that it was substantially covered by the general charge. So- there was no error in refusing these two instructions. The twenty-eighth charge sought to apply the doctrine of intoxication as an excuse for committing -murder in ‘the first degree to murder in all its degrees and the 29th charge was upon the subject of a reasonable doubt.
Requested instruction numbered 33 is made the basis of the 39th and' 93rd assignments of error. This charge informed the jury that they could not find the defendant guilty of murder or manslaughter unless' they believed from the evidence beyond a reasonable doubt that he was guilty. The general charge covered the proposition.
Assignments of error numbered 36 and 90 attack the
The 41st assignment of error and the 95th attack the court’s ruling in refusing the 35th requested instruction. This was an instruction upon the subject of manslaughter which was fully covered in the general charge.
The 57th and 110th assignments of error attack the refusal to give requested instruction numbered 64. This charge directed the jury to acquit the defendant if they believed that his mind at the time of the killing of Mitchell was in a state of settled frenzy or insanity, either permanent or intermittent as distinguished from voluntary intoxication and to such an extent as to dethrone reason and subdue his will and disable him from exercising the mental functions necessary to constitute murder in either degree or manslaughter. The court refused the charge upon the ground that it was covered in the general charge. Under assignment of error numbered 16, as discussed in this opinion, the charge' there quoted which was given by the court, we think fully states the law upon
Under thé 58th and 111th assignments of error counsel for defendant insist that the court should have instructed the jury to acquit him. It is argued that there was no proof of venue. This position is without merit. There was evidence that the crime was committed at the home of Charlie Carter, and that he lived in Walton County. A picture of the house was made and identified by witnesses as the home of Carter and the place where the crime was committed.
The 112th, 113th, 114th, 115th, 116th, and 117th assignments of error raise the question of the sufficiency of the evidence to support the verdict. Although the bill of exceptions in this case does not conform to the rule, which requires a certificate that it contains all this evidence and in fact purports to set forth only in substance the testimony of the witnesses, and by ,reason of such defect in the bill of exceptions the assignments of error based upon the contention that the evidence was insufficient to support the verdict would have to fail. We have, nevertheless, in view of the consideration heretofore mentioned examined the evidence as shown by the bill of exceptions and we are of the opinion that it amply sustains the verdict.
The assignments of error numbered 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, and 131 challenge tlie correctness of the court’s charge to the jury in many particulars. It would be of no benefit to set out in this opinion the court’s charge in full, nor to answer the criticisms of counsel. Arguments have been made in