HESTER STONE, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Hester Stone was convicted of murder in the second degree for killing Nancy Campbell with a knife and sentenced to life imprisonment. The Florida Supreme Court affirmed the conviction, rejecting her claims that the trial court erred in denying a continuance motion and in instructing the jury on the statutory definition of murder in the second degree.
The trial court did not abuse its discretion in denying the continuance motion, as no proper predicate was laid for the impeaching evidence and other witnesses present at the preliminary hearing could have been called. The court properly instructed the jury on the statutory definition of murder in the second degree, as this definition may properly be given even when evidence does not strictly make out a higher crime, since manslaughter is defined by statutory exclusion.
“Our statutory definition of manslaughter is reached by a process of exclusion, being in substance an unlawful killing which is not murder in any of its degrees, and to define it correctly to the jury it is proper to give the statutory definitions of murder, even though the evidence may not make out strictly a case of one of the higher crimes.”
Establishes the legal principle that statutory definitions of murder may be given to jury even when evidence does not strictly support conviction of a higher degree crime, because manslaughter is defined by exclusion.
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Join FLexlaw to unlock all legal intelligenceHester Stone was indicted for first-degree murder in Walton County Circuit Court for killing Nancy Campbell by cutting her with a knife. Stone was gra…
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Cockrell, J.
Hester Stone was indicted in the Circuit Court for Walton County for murder in the first degree, by cutting to death with a knife one Nancy Campbell. She was convicted of murder in the second degree and sentenced to life imprisonment.
Upon her arraignment at the Spring term,' 1908, she was granted at her instance a continuance to the then ensuing Fall term and upon being put to trial at that term she moved a further continuance upon the ground of the absence of a witness, and the refusal of this continuance constitutes the first assignment of error. We find no abuse of discretion in the denial of the motion.
The testimony she expected to procure was the evidence of one A. H. Hilson, the committing officer, to the effect that the principal State witness had made at the preliminary hearing a statement different from that given by her at the trial. No proper predicate was laid for the impeaching evidence, there were numerous other witnesses present at the preliminary hearing who might have been called had the proper predicate been laid, and the necessity of an adjournment to another term to secure Hilson’s presence is not sufficiently shown. Other objections might be urged and multiplied.
The court gave the statutory definition of murder in the second degree and this is assigned for error. There was no error here. Our statutory definition of manslaughter is reached by a process of exclusion, being in substance an unlawful killing which is not murder in any of its degrees, and to define it correctly to the jury it is proper to give the statutory definitions of murder, even though the evidence may not make out strictly a case of one of the higher crimes.
In the charge of the court upon the crime of manslaughter charged in the indictment along with that of murder, there appeared in the original transcript a clerical misprision, in that it permitted the jury to find mauslaugther when the facts hypothesized would justify a verdict of murder in the first degree, but this slip did not in fact exist as shown by the corrected copy of the charges now of file before us.
There was credible evidence from which the jury might have found a verdict of murder in the first degree and under the statute we shall not disturb the one rendered.
The judgment is affirmed.
All concur, except Parichill, J., absent on account of illness.
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Allison v. State, 162 So. 2d 922 (Fla. 1st DCA 1964)…as well as murder in all its degrees, so that a trial on such an indictment involves a question of the defendant’s guilt as to every grade of unlawful homicide. See, among other cases, McCoy v. State, 40 Fla. 494, 24 So. 485 (1898); Stone v. State, 57 Fla. 28, 48 So. 996 (1909); and Owens v. State, 65 Fla. 483, 62 So. 651 (1913). Our Supreme Court has held that a person indicted for assault with intent to murder may be convicted of an aggravated or felonious assault (Pittman v. State, 25 Fla. 648, 6 So.…
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Ward v. State, 75 Fla. 756 (Fla. 1918)…Rep. 287. The other experimentation with the statue we think was also harmless. The unlawful killing of a man when such killing is not murder in any degree is manslaughter, at least so far as the facts of this case are concerned. See Stone v. State, 57 Fla. 28, 48 South. Rep. 996. We think however that where it becomes necessary to define a statutory crime to a jury the statute should be literally followed. Considered alone the instruction was erroneous because, in it the jury were told that if they did n…
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Woods v. State, 154 Fla. 203 (Fla. 1944)…and judgment for a higher [*206] degree of homicide. Pruitt v. State, 143 Fla. 897, 197 So. 519. Also see Ammons v. State, 88 Fla. 444, 102 So. 642; Morrison v. State, 42 Fla. 149, 28 So. 97; Owens v. State, 65 Fla. 483, 62 So. 651; Stone v. State, 57 Fla. 28, 48 So. 996; Dedge v. State, 68 Fla. 240, 67 So. 43; Johnson v. State, 24 Fla. 162, 4 So. 535, approved and distinguished in Marshall v. State, 32 Fla. 462, 14 So. 92; and Brown v. State, 31 Fla. 207, 12 So. 640. The same rule necessarily applies t…
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