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Holland vs. The State of Florida-Opinion of Court.

The evidence shows that on the 2d of August, the prisoner and the deceased had a dispute and quarrel about a small sum of money due from the deceased to prisoner, and that the prisoner then made threats against the deceased, that he would shoot him if he did not pay him and attempted to do deceased some great bodily harm with a dangerous weapon then in his possession. That very soon after this, the deceased attempted to reason the case with the prisoner, who was much excited, crying and cursing, and saying he would shoot the deceased if he did not pay him. The evidence further shows, that the parties were together for some time afterwards, and that no reconciliation took place, and that they parted without a friendly understanding or becoming reconciled.

Upon this state of facts, if the prisoner had on the next day met the deceased, and without any further quarrel or words killed him, it cannot be doubted for a moment that the killing would have been murder upon express malice.

Let us now examine, if what subsequently took place has changed the grade of guilt, and made the killing only manslaughter, as is now contended for on behalf of the prisoner.

It will be seen from the evidence that on the next afternoon the prisoner and the deceased were thrown together again in returning from preaching, and the quarrel was renewed; but it does not clearly appear who commenced it. At that time several persons were present, and among them, James Holland, the brother of the prisoner. Offers were made to settle the dispute between the prisoner and the deceased. It was offered on the part of the deceased, that if the prisoner would "take back the damned lie which had been given on the day before, he would settle it with the deceased without a fuss, if not you have got me to fight." This the prisoner refused to do, saying he never took back anything he said. After this a proposition was made by the deceased, (who was the larger and stronger of the two,) he

Holland vs. The State of Florida-Opinion of Court.

offered to lay down and give the prisoner the advantage, by letting him take his hold and thus fight him, but the prisoner declined to do so, and said: "I will not fight you a fair fight, but whenever I fight you, I will go into you."

Very soon afterwards the prisoner took off his coat at the request of the deceased, preparatory to a fight, and the parties were in the act of engaging in combat, when James Holland, the brother of the prisoner, interposed and said to the deceased, "you shan't fight where I am." This interposition on the part of James Holland produced words between him and the deceased, which led to blows, as will be seen from a statement of the evidence. While James Holland and the deceased were in angry discussion, and before any blow had passed, the prisoner went a few steps to get his knife, which was in the possession of one of the persons present, and on his return, seeing his brother and the deceased confronting each other and about to close, or already closed in combat, he ran up and struck the deceased two blows with a knife, which proved mortal in a short time.

From this uncontradicted statement of facts, can there be a doubt that the killing of Malvin Brock was done malo animo; that it was intentional and without reasonable provocation or justifiable cause? The attendant circumstances "carry in them the plain indications of a heart regardless of social duty, and fatally bent upon mischief," which is the true and legal definition of that implied malice constituting the guilt of murder. The use of a dangerous weapon, the probable consequence of which would be the death of another, shows the intent was to kill and not to fight, and there being no reasonable or sufficient provocation, the law infers the act was done with a wicked and mischievous intention of a mind regardless of human life.

It was urged with much earnestness and ability at bar, that the attempt of the prisoner to cut the deceased with a knife on the day preceding the one on which the homicide

Holland vs. The State of Florida-Opinion of Court.

took place, together with the threats then made, do not establish the existence of malice, but the killing was the result of the recent provocation, and that the jury were not warranted in inferring malice from these circumstances.

We cannot give our assent to this position. In our opinion these acts are of the most weighty character to prove the existence of an antecedent grudge, which is the very essence of express malice.

In the case of the State vs. Ford, 3 Strobh., 517, and Keener vs. The State, 18 Geo. Rep., 194, it was held, "that the remoteness or nearness of time, as to threats and declarations, pointing to the act subsequently committed, make no difference as to the competency of the testimony to prove malice."

"When from the evidence the jury are satisfied of the previous existence of malice in the slayer, its continuance down to the perpetration of the homicide must be presumed, unless there is evidence to rebut it and show that the wicked purpose has been abandoned."

When it becomes necessary to decide whether the killing was upon an antecedent grudge or on a recent provocation, in order to determine the guilt of the prisoner as to murder or manslaughter, we hold the rule to be this: When an antecedent grudge has been proved and there is no satisfactory evidence to show that the wicked purpose has been abandoned, it must be clearly shown to the jury that the provocation was a grievous one in order to warrant them in finding that the blow was struck on the recent provocation and not on the old grudge.

In some of the States it has been decided that when a deliberate purpose to kill or to do great bodily harm is ascertained, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which immediately precedes the act, is to be thrown out of the case and goes for nothing, unless it can be shown that this purpose was

Holland vs. The State of Florida-Opinion of Court.

abandoned before the act was done. State vs. Johnson, 3 Iredell's Rep., 354; State vs. Ferguson, 2 Hill's S. C. Rep., 619; State vs. Jane, 4 Iredell's Rep., 113; State vs. Tolley, 3 ib., 424; Stewart vs. The State, 1 Ohio Rep., 66.

It is asigned as error "that the jury in making and rendering their verdict, did not give to the accused the benefit of the reasonable doubt fairly arising on the evidence as to whether he was guilty of murder or manslaughter, to the benefit of which doubt the accused was entitled by the law of the land, and which was given in charge by the court." We can see no means by which this court can ascertain if there was a rational doubt in the minds of the jury as to the guilt of the prisoner. On this point they were properly charged by the court as to the law, and we presume, from the facts of the case, they entertained no reasonable doubt of guilt.

If the evidence established that it was a case of homicide, without malice and upon reasonable provocation, it would then be the duty of this court to grant the accused a new trial, regardless of any doubt or absence of doubt on the minds of the jury, which we cannot know existed. But from the views herein expressed by the court, it will be seen that we are of opinion that the jury might well find the killing to have been upon express malice, or upon implied malice, arising from the circumstances attending the killing.

The judgment and sentence of the court below is affirmed, which will be certified to the Judge of the Suwannee Circuit, in order that the said judgment and sentence may be carried into effect.

Sutton vs. The State of Florida-Opinion of Court.

SIMON SUTTON, APPELLANT, VS. THE STATE OF FLORIDA.

1.

The carrying arms on the person partially concealed is construed to be a violation of law prohibiting the carrying of arms secretly. The statute provides that arms shall be carried openly outside of all the clothes.

Appeal from Suwannee Circuit Court.

This case was decided at Tallahassee.

A statement of the case is contained in the opinion of the Court.

John A. Warrock and A. A. Knight for Appellant.

The appellant excepts to the charges of the Judge in the court below, and insists that a weapon carried on the person SO as to be seen, does not come within the statute, "seeretly." Thomp. Dig., 498.

That in this case the pistol was partly in the band of the pantaloons and partly out, so that it could be seen by any and all, and therefore not concealed. Ibid.

That the proviso means any pistol outside of all his clothes, so that it may be distinguished. Ibid.

The Attorney-General for the State.

BAKER, J., delivered the opinion of the Court:

This is an appeal from the Circuit Court for Suwannee county.

The defendant was indicted, tried and convicted for carrying arms secretly, and fined twenty-five dollars.

The witness, Joseph Stewart, testified on the trial of the case that he met the defendant on the road from Houstoun; passed close by him; saw the butt of a pistol sticking out of his pants; sometimes his coat covered the pistol, at other

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