Rehearing Denied July 25, 1924.
Error to Circuit Court, Madison County; M. F. Horne, Judge.
S. Linsley was convicted of murder in the second degree, and he brings error.
Syllabus by the Court
When defense of self-defense available, stated. In the trial of one upon a charge of murder, the defense of self-defense is available only when there exists reasonable grounds to apprehend a design to commit a felony or to do some great personal injury to the defendant and there shall be imminent danger of such design being accomplished, and the defendant must not have wrongfully occasioned the necessity and must have used all reasonable means in his power, consistent with his safety, to avoid the danger and to avert the necessity of taking human life. The circumstances must be such as to induce a reasonably cautious and prudent man to believe that the danger was actual and the necessity real, in order that the slayer may be justified in acting upon his own belief to that effect.
Taking human life neither justifiable nor excusable where fatal wound inflicted after danger to slayer passed. The taking of human life is neither justifiable nor excusable, where the fatal shot is fired or the fatal stroke given after danger of death or great bodily harm to the defendant has passed.
Assignments of error on exclusion of testimony must show admissibility. Assignments of error, based upon the exclusion of testimony, to be available must be so presented to an appellate court as to make it to appear that the excluded testimony was relevant and material, or otherwise proper to be admitted.
Plaintiff in error has burden of proving substantial error. Upon a writ of error, the plaintiff in error has the burden of proving substantial error; a showing of mere technical error may not be sufficient.
Judgment not reversed for technical trial errors unless fundamental rights of accused violated. Where no fundamental rights have been violated and the evidence of guilt is amply sufficient, technical errors in ruling on the admission of testimony or in giving or refusing charges will not cause a reversal.
Assignments of error not argued will not be considered. Assignments of error not argued are abandoned, and will not be considered by the appellate court.
Juror not heard to impeach own verdict by showing matters resting in his personal consciousness. The affidavit, deposition, or statement of a juror will not be received to impeach his own verdict, where his deposition or affidavit or statement relates to matters resting in the personal consciousness of the joror.
Jurors' affidavits, showing matters which do not essentially inhere in verdict, admissible to avoid it. The affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. Such general rule is subject to the qualification, however, that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter, occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself.
Court may examine jury, on motion for new trial, to determine effect on verdict of alleged prejudicial misconduct. Where, during the trial of a criminal case and before the jury has received its instructions from the court, and during a recess, the jury has access to a law book and copies of certain charges, it is proper for the trial court, when the verdict is attacked for such reason, to ascertain from the testimony of the jurors whether any misconduct prejudicial to the defendant resulted from such circumstance.
[88 Fla. 136] Chas. E. Davis, of Madison, for plaintiff in error.
Rivers H. Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.
In April, 1923, the plaintiff in error, Linsley, was indicted for the murder of William R. Pickles, and was convicted of murder in the second degree. A writ of error was taken to the judgment. There are 38 assignments[88 Fla. 137] of error; one of which rests upon the order overruling a motion for a new trial, which itself contains 31 grounds.
The case was a very simple one and the material facts few. The plaintiff in error, who about two years and a half before the homicide moved from the state of Georgia, near Valdosta, and settled in Madison county near Mosley Hall, became involved in a controversy with Mr. Pickles, an elderly man and long-time resident of the community, over a boundary line, or a line fence. The dispute, instead of being settled amicably between the parties, seemed to grow and produce bad feelings between the parties until the community was to some degree affected by it, to the ...