Keigans v. State

Parkhill, J. The plaintiff in error was indicted in the Circuit Court of Pasco County for the murder of Hansel Norman, was tried and convicted of murder in the first' degree, and from the sentence of death imposed by the Court, seeks relief here by writ of error. 1. The following charge given by the Court to the jury and duly excepted to, is assigned as error: “The jury are the sole judges of the evidence and of the weight- and sufficiency of the evidence. It is your peculiar province to determine which of the witnesses or what portions of their testimony you will believe; and which, if any, you will not believe. I f there are conflicts in the testimony, you should reconcile them, if in your power to do so. But if you find yourselves unable to reconcile such conflicts, then it will become your duty to entirely discard from consideration such portions of the testimony as you may not believe, and to base jamr verdict solely upon the part of it which you believe to be the truth, bearing in mind the interest in the result of the trial, if any, which may induce any given witness to falsify or color his evidence. You should treat the testimony of the defendant as you do that of any other witness, and that is, give it just such weight as you think it entitled to, rememherimy the interest lie necessarily must have in the result of the trial.” The Iasi clause, of the last sentence of this charge is objectionable because it singles out and gives undue prominence to the testimony of the defendant, and the fact of his interest in the result of the trial. It is calculated to unduly impress the minds of the jury and prejudice the defendant. The direction here is mandatory that the jury — 60 — remember the interest the defendant necessarily must have in the result, of the trial. Immediately preceding the sentence under consideration, the Court instructed the jury in weighing the testimony of-.witnesses to bear in mind “the interest in the result of the trial, if any, which may induce any given witness to falsify or color his evidence.” The juxtaposition of the sentences and the difference in their phraseology Avould naturally lead the jury to understand that "the one clause Avas mandatory, and the other only permissiA’e; that so far as the defendant Avas concerned, he necessarily must have an interest in the result of the trial, Avliich the jury must remember in considering his testimony; and that, in considering the testimony of the other Avitnesses in the case, tie jury Avill determine Avhether a Avitness has an interest in the result of the trial, and, if so, to bear in mind the interest Avhicli may induce him to falsify or color his evidence. This charge does not place the defendant in precisely the same attitude Avith reference to the case, as other Avitnesses are placed, although the court told the juiw that they should treat the testimony of the defendant as they Avould that of any other witness. It is doubtless true that the defendant necessarily must have an interest in the result of the trial, but as Avas said in Hicks v. United States, 150 U. S. 442, Sup. Ct. Rep. 144, “it must be remembered that men may testify truthfully, allhough their lives hang in the balance, and that the hvw, in its Avisdom, has provided that the accused shall haAre the right to testify in his OA'-n behalf. Such a privilege Avould be a A’ain one if the judge, to whose lightest word- the jury, properly enough, giA’e a great Aveight, should intimate that the dreadful condition in AA'hich the accussed finds himself should deprive his testimony of probability.” — 61 — Chapter 4400, Acts of 1895, makes a defendant at his option a competent witness. It confers upon him a substatial right and benefit. Under its provisions, he has the right to submit his testimony to the jury and have them judge of his credibility. Section 1088, Revised Statutes of 1892. provides that the judge presiding shall charge the jury only upon the law of the case. To tell the jury about the interest a man necessarily must have when he is on trial for his life neutralizes or impairs the legislative act that makes him a witness. Green v. State, 40 Fla. 191, Text 199, 23 South. Rep. 851; Lang v. State, 42 Fla. 595, Text 601, 28 South. Rep. 856; Hampton v. State, 50 Fla. 55, 39 South. Rep. 421; Buckley v. State, 62 Miss. 705; Woods v. State, 67 Miss. 575, 7 South. Rep. 495; Muely v. State, 31 Tex. Cr. Rep. 155, Tex. Cr. Rep. 155, Text 168-9, 18 S. W. Rep. 411; 19 S. W. Rep. 915; Harrell v. State, 37 Tex. Cr. Rep. 612, 40 S. W. Rep. 799; Purdy v. People, 140 Ill. 46, 29 N. E. Rep. 700. See, also, Barber v. State, 13 Fla. 675, Text 681; Miller v State. 15 Fla. 577, Text 584; Andrews v. State, 21 Fla. 598, Text 610. A contrary doctrine is held by the courts in some States of our Union, under statutes materially different from the statutes of this State on the subject. Muely v. State, supra. II. It is assigned as error that the Court erred in charging the jury as follows: 4a. “The premeditated design to kill may have existed in the mind of the slayer for a month, a week, a day or an hour, or may have been formed a moment before the fatal shot was fired. If you believe, from the evidence, that the defendant shot and killed Hansel Norman as charged in the indictment, that he killed liim without legal justification, or excuse, and that at the time he fired the shot which killed' Hansel Norhian, he — 62 — intended to kill him, it would make no difference at what precise time he made up his mind to take Norman’s life. If, when he fired the pistol, he intended to kill, he is guilty of murder in the first degree, even although he may not have had in his mind any such intention at the time he drew his pistol.” This charge is erroneous and misleading. We do not think it conforms to the definition of murder in the first degree under our statute. “The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed, or any human being,” is declared, by Section 2380, Revised Statutes, to be murder in the first degree. Manslaughter is “the killing of a human being by the act, procurement or culpable negligence of another in cases where such killing shall not be justifiable or excusable, nor murder according to the provisions of this article.” Sec. 2384, Rev. Stats. of 1892. In manslaughter, there may be an intent to kill existing in the mind of the slayer at the time the fatal shot is fired. In order to constitute murder in the first degree, there must be not only an intention to kill on the part of the slayer, but there must be a premeditated design to kill or effect death also. This charge does not distinguish in this respect between manslaughter and murder in the first degree. It permits the jury to find the defendant guilty of murder in the first degree, if, when he -fired the fatal shot he intended to hill the deceased, without requiring the defendant to have formed and acted in pursuance of such a design as the law would know as premeditated. While the first sentence of the charge states that “the premeditated, design to kill may have existed in the mind of the slayer for a month, week, a day or an hour, or may have been formed a moment "before the fatal shot was fired,” without — 63 — saying that the action of the slayer must he the result of such premeditation, it goes a stepfurther in whittling away and shortening the time within which the defendant must have formed a premeditated design to kill the deceased; and, by saying that it would make no difference at what precise time he made up his mind to take Norman’s life, if at the time he fired the fatal shot he intended to kill him he is guilty of murder in the first degree, the charge does away entirely with 'the requirement of the law “that there must be such an interval of time between the intent and the act as will repel the presumption that it was done upon a sudden impulse conceived and executed almost instantaneously.” Carter v. State, 22 Fla. 553, Text 559. This charge loses sight of the difference between premeditated design to effect death, which is essential to the crime of murder in the first degree, and an intention to kill, which may exist in manslaughter, and permits the defendant to be convicted of murder in the first degree upon proof of what might be termed instantaneous or flashlight premeditation. As was said by this Court, Sth headnote, all the justices concurring, in Cook v. State, 46 Fla. 20. 35 South. Rep. 665, “there may in contemplation of law, be an intention to kill a human being, which may not amount to a premeditated design to kill, shooting a man intentionally and killing ‘'him is not necessarily the same as doing so with a premeditated design to kill. There may be an intention to kill without its having been premeditated. In order to convict the defendant of murder in the first degree the jury must be satisfied from the evidence beyond a reasonable doubt that the defendant not only had an intention to kill the deceased, but that he actually had a premeditated design to kill him.” See also Gardner v. State, 28 Fla. 113, 9 South. Rep. 835, S. C. 29 Am. St. Rep. 232; — 64 — Olds v. State, 44 Fla. 452, 33 South. Rep. 296. Or as it was expressed by this court in Lovett v. State, 30 Fla. 142, 11 South. Rep. 550, “there must have been, previous to the act of killing, deliberation, by the slayer upon the question of killing the' deceased, resulting in a distinct determination or well founded design to kill.” It will not do to say that the first sentence of the charge assumes that a premeditated design is an essential element of murder in the first degree. Neither will it do to say that the words “as charged in the indictment,” used in this instruction, refer to the indictment in its entirety and thereby sufficiently charges that the killing was perpetrated from a premeditated design to effect the death of the deceased, where the trial judge, as he does in this case, does not stop with the expression “as charged in the indictment,” but goes on in the charge to erroneously enumerate and state the elements of murder as charged in the indictment to be “that he killed him without justification or excuse, and that at the time he fired the shot which killed Hansel Norman he intended to kill him,” etc., and thereby erroneously defined the essential element of murder in the first degree, to wit: The premeditated design to effect death. We cannot explain away the expression in the instruction “and that at the time he fired the shot which killed Hansel Norman he intended to kill him,” by saying that it was unnecessary. This expression was harmful to the defendant, because it entirely changed the charge in the indictment from one of murder in the first degree to manslaughter, it substituted for the element of premeditated design charged in the indictment, the element of intent to kill, and yet the instruction called for a verdict of murder in the first degree. The error in this charge followed naturally from a preceding charge given by the trial court as follows: “Pre — 65 — meditated design means an intent to kill, design means intent, and both words imply premeditation.” In giving the charge last quoted, the trial judge followed literally the utterance of this Court in Ernest v. State, 20 Fla. 383, Since that time this question was considered here in Cook v. State, supra. The court, however, was equally divided, and the question presented by this charge was not decided. Undoubtedly design means intent. Premeditated design, therefore, means premeditated intent. Premeditation is composed of “pre” and “meditation,” and means the act of premeditating; previous deliberation; forethought. In Lovett v. State, supra, the words are used as synonyms. “Premeditated” implies an interval, however short, between the formation of the intent or design and the commission of the act. Standard Dictionary. As was said by the Court of Appeals of New York: “Such design must precede the killing by some appreciable space of time. But. the time need not be long. It must be sufficient for some reflection or consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. The human mind acts with celerity which it is sometimes impossible to measure.” People v. Majone, 91 N. Y. 211; People v. Decker, 157 N. Y. 186, 51 N. E. Rep. 1018. See, also Lovett v. State, supra; Savage v. State, supra; Carter v. State, supra. The question of premeditation is one of fact for the jury, and whether a premeditated design to kill was formed must be determined from all the circumstances of the case. Carter v. State, supra; Hicks v. State, 25 Fla. 535, 6 South. Rep. 441; Lovett v. State, supra; Blige v. State, 20 Fla. 742; People v. Majone, supra; People v. Decker, supra; Adams v. State, 28 Fla. 511, 10 South. Rep. 106. From what has been said, therefore, we think that a — 66 — charge in the following language will give the jury a fair definition of murder in the first degree under our statute: (In order that the defendant be found guilty of murder in the first degree the evidence must show, beyond a reasonable doubt, that he unlawfully hilled Hansel Norman by shooting him as charged from a premeditated design to effect Hansel Norman’s death. There must not only be an intention to hill, but there must also be a premeditated intention or design to kill. Design means intent and premeditated means meditated or thought upon beforehand. Such design must precede the killing by some appreciable space of time; but the time need not be long. It must be sufficient for some reflection or consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. The human mind acts with celerity which it is sometimes impossible to measure, and whether a premeditated design to kill was formed .must be determined by the jury from all the circumstances cof the case. If the evidence convinces the jury beyond a '.reasonable doubt that the defendant unlawfully hilled Hansel Normal by shooting him as charged from such a premeditated design as already defined the jury will find the defendant guilty of murder in the first degree). The above discussion and conclusions with reference to the charge of the Court below marked 4a has the unanimous approval of the three members of the Court comprising Division B, but as it is not concurred in by the three members of the Court comprising Division A, the question presented by such- charge is not now decided. III. Exception is taken to the following charge given by the Court: “If the jury should find the defendant guilty, they must in their verdict set forth the distinct degree of homicide, of which they find him guilty, viz: — 67 — they must say whether they find him guilty of murder in the first degree, or murder in the second degree, or of murder in the third degree, or manslaughter, and the form of the verdict should be in the following or like form: ‘We, the jury, find Dow B. Keigan, the defendant, guilty of,’ etc. (Here filling in the degree of the crime). If you find him not guilty, you will say: ‘We, the jury, find the defendant not guilty.’ ” There was no error here. The Court was only instructing the jury to comply with Section 2383 of the Revised Statutes of 1892, as follows: “When the jury find the defendant guilty under an indictment for murder, they shall ascertain by their verdict the degree of unlawful homicide of which he is guilty.” It would have been better form to have used the words “unlawful homicide,” instead of simply the word “homicide,” in the charge given; but there is nothing at all in the contention made here by counsel for plaintiff in error that “in this charge the Court has failed to give the exceptions mentioned in the Statute where killing is declared to be justified or excusable, and assumes that it is murder in the first, second or third degree, or manslaughter, and the charge further assumes that there was no evidence other than to prove the material facts to constitute murder in the first, second or third degree or manslaughter, and further than this, the jury could not go, that it was one of the crimes set forth above.” It is perfectly plain that if the defendant is guilty of any crime known to the law, it must be one of the crimes mentioned by the Court in this charge. As this case must be reversed because of the errors already noted, we deem it unnecessary to notice other assignments of error. It may be well, however, to say that under the circumstances of this case, we think the testimony of the witness, John A. Nelson, to the effect that shortly before the death of Norman the defendant said he — 68 — would kill any white man who interfered with him while he was whipping a negro was permissible, as this testimony tended to disclose a motive for the homicide. There are copied into the transcript many charges numbered from 15 to 44, both inclusive, that are not signed by the judge or endorsed as having been given or refused, nor ordered to be filed, neither are they contained in the bill of exceptions. These charges are, therefore, not so authenticated as that they can properly be considered by an appellate court. We do not know, therefore, whether they were in fact given to the jury or not, but as there will have to be another trial of the cause, we do not wish to be considered as having sanctioned such charges by ouh silence. Several of them are in conflict with the views herein expressed, and others of them infringe upon other rules of law and other decisions of this court. The entire charges in the case should be Recast and made to conform to the law as herein expressed. For the errors found the judgment of the Circuit Court in this cause is reversed at the cost of Pasco County, and a new trial awarded. Taylor and Hocker, JJ., concur in the opinion; Whitfield, J., concurs in the reversal; and, Shackleford, C. J., and Cockrell, J., dissent.