Meyer v. State , 89 Fla. 261 ( 1925 )

This writ of error was taken to a judgment imposing a death sentence upon a verdict of murder in the first degree.

The accused testified that the deceased was killed at night by the discharge of a pistol in the hand of deceased while the defendant was scuffling with the deceased, who had assaulted the accused at the solitary home of the deceased where the defendant was visiting him. The body of the deceased was rudely buried by the accused, and property belonging to the deceased was found in the possession of the accused when he was arrested the next day in a nearby city.

The indictment charges that the defendant "did unlawfully and from a premeditated design to effect the death of one John H. Lane make an assault on the said John H. Lane, and a certain pistol, which then and there was loaded with gun powder and leaden bullets and by him the said Fred Meyer, alias Frank Meyer, had and held in his hand, he, the said Fred Meyer, alias Frank Meyer, did then and there unlawfully and from a premeditated design to effect the death of the said John H. Lane shoot off and discharge at and upon the said Charles H. Lane, thereby and by thus striking the said John H. Lane with the said leaden bullets inflicting on and in the body of the said John H. Lane one mortal wound, of which said mortal wound the said John H. Lane then and there died."

As the indictment distinctly charges that the defendant from a premeditated design to effect the death of John H. Lane assaulted John H. Lane with a loaded pistol and by striking the said John H. Lane with the bullets, inflicting on John H. Lane a mortal wound of which John H. Lane died, the allegation in the indictment that the defendant "did shoot off and discharge (the pistol) at and upon the said Charles H. Lane" is not fatal to the indictment. It is clear from the indictment that John H. Lane was the person assaulted with the pistol and that John H. Lane was killed by the discharge of the pistol. See Pittman v. State, 25 Fla. 648, 6 South. Rep. 437; Morris v. State, 54 Fla. 80, 45 South. Rep. 456. See also 29 C. J. 1109; Brown v. State,84 Fla. 660, 94 South. Rep. 874; Hall v. State, 70 Fla. 48, 69 South. Rep. 692. The defendant could not have been misled by the charge as made, and there was certainly no material or harmful variance between the allegations and the proofs.

The sheriff after testifying that he offered no reward or inducement to the accused, stated that he told the accused "anything that you say might be used against you. Tell me the truth. That is all I want." He then testified as to statements made to him by the accused as to the circumstance of the death of John H. Lane. Even if a proper predicate was not laid for testimony of a confession, the statements of the accused testified to by the sheriff, could not in view of the defendant's own testimony and other circumstances in evidence have been harmful to the defendant.

Other matters of procedure complained of, including the statements of the State Attorney in his argument to the jury that were objected to, have been fully considered and no reversible errors are made to appear. There is ample evidence from which the jury could have inferred a premeditated design to kill and the killing of the deceased as alleged. The proceedings violated no rights of the defendant and the verdict and judgment have a sufficient predicate in the evidence and the rules of law applicable thereto.

Affirmed.

WEST, C. J., AND ELLIS AND TERRELL, J. J., concur.