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[Cite as Carlton v. State, 63 Fla. 1, __, 58
So. 486, 488 (1912). NOTE: This decision concerns criminal use of a
firearm. The court comments on the right to arms on page 488.]
CARLTON et al. v STATE
(Supreme Court of Florida. March 26, 1912. Rehearing
Denied May 15, 1912.)
(Syllabus by the Court.)
Threats made against the
deceased by two of the three persons indicted for his murder on the night before
the homicide, not made in the presence of the third party, are admissible in
evidence against the two who made them, as tending to show their animus against
the deceased; and the third person indicted is not injured by such evidence,
when the court instructs the jury that such threats are not evidence against
such third party.
2. Criminal Law--Appeal--Exclusion
of Evidence--Harmless Error.
No error is committed in refusing to
permit a party charged with an unlawful homicide to prove that he voluntarily
surrendered to the officer, when the state had not undertaken to show that he
3. Statutes--Title of
The question whether the title to an act was broad enough to
cover some of its sections is of no moment, when the sections of said act were
subsequently embodied in the General Statutes of 1906.
Section 3262, General
Statutes of 1906, is not unconstitutional, because it excepts sheriffs
and other police officers from its operation, as said exception or
classification is based on a public necessity, and is not in conflict with any
specific provision of the Constitution.
Weapons--Constitutional Law--Right to Bear Arms.
The statutes against
carrying concealed weapons have no connection with section 20 of
the Bill of Rights, which preserves "to the people the right to bear
arms in defense of themselves and the lawful authority of the state."
6. Arrest--Arrest Without Warrant.
adoption of sections 3262 and 3263 of the General Statutes of
1906, the carrying of concealed weapons is a breach of the peace which
authorizes an arrest by an officer, without warrant; and section
3929 is broader, and gives an officer authority to arrest, without
warrant, any one who, in the presence of such officer, violates any of the penal
laws of this state, or of any municipality, and makes it the duty of such
officer to arrest, without warrant, and take into custody any person whom such
officer has reasonable ground to believe, and does believe, has committed any
felony, or whom he finds in the act of committing any felony, or about to commit
a felony, or engage in a fight or other breach of the peace.
7. Arrest--Arrest Without
Where a person fires a pistol in a village,
behind a cold drink stand within 100 yards of an officer's residence, it may
fairly be said that the pistol was fired in the "presence" of the officer, and
is an offense, under section 3626, Gen. St. 1906, for which
an officer may arrest the person firing the pistol, without warrant.
Law--Instructions--Evidence to Sustain.
Requested instructions, not
warranted by the evidence, are properly refused.
Error to Circuit Court, St. Johns County; R. M.
Bascom Carlton was convicted of murder in the first degree, and
Marion Carlton and Dan Carlton were convicted of murder in the second degree,
and bring error. Affirmed.
John E. & Julian Hartidge, of Jacksonville, and
A. R. Logan, of St. Augustine, for plaintiffs in error. Park Trammell, Atty.
Gen., and C. O. Andrews, both of Tallahassee, for the State.
HOCKER, J. Bascom Carlton, Dan Carlton, and Marion
Carlton were indicted on the 25th of April, 1911, in the circuit court of St.
Johns county, for the murder of one Guy White on the 5th day of March of the
same year. On the trial, Bascom Carlton was convicted of murder in the first
degree, with recommendation to mercy, and Marion and Dan Carlton were convicted
of murder in the second degree, and each of them sentenced to the state prison
for life. The judgments are here for review on writ of error. Before discussing
the assignments of error, the writer will endeavor to give a synopsis of the
On Saturday, the 4th of March, 1911, Bascom and Dan Carlton went from
the neighborhood of Espanola to Hastings, in St. Johns county. They went on the
East Coast Railroad. Their brother, Marion, went with them as far as Dinner
Island, and there Marion left the train. At Hastings, Dan and Bascom figured
around the barrooms considerably, bought and drank whisky, and one of them,
probably Bascom, got into some trouble in a place where there was dancing by
stepping on some one's toe. Some disturbance occurred, which led to the arrest
of Bascom and Dan. They gave bond, were released, and spent the night at a
private house. They say that they were arrested just about midnight, when they
were ready to take a train back to Espanola. They got on the train Sunday
morning to go back to Espanola. At Dinner Island, they were joined (p.487)by Marion Carlton. A youth named Burney, who
worked with Bascom near Espanola, also went to Hastings, and was on the train on
Sunday morning. He was drunk, and had a pistol which Bascom says was his; he
having left it in his room, where Burney got it. It was evident all these
parties were drinking. The pistol which Burney had was taken from him by one of
the parties and given to Marion or Dan, but finally found its way to Marion. The
defendants say that when Marion got off the train on Saturday at Dinner Island
Bascom gave him his pistol, which Marion returned to him on Sunday, when he got
on the train. It was proven that Bascom and Dan, on Saturday night at Hastings,
made threats of killing Guy White and another man, Kelley, who had arrested them
at Hastings. The defendants got off the train Sunday at Espanola about 12:30
o'clock. The evidence tends to prove that they hung around the depot for some
time in the negro waiting room. There is some evidence that the agent requested
Guy White, who was a deputy sheriff, to get them away from the depot. Marion and
Dan went first from the depot to a vacant cool drink stand, about 100 yards from
the depot. They say they went there to have a settlement of money matters, as
Marion was to leave the next day. Some time after Marion and Dan went to the
cool drink stand, Bascom joined them. The evidence tends to prove that while
they were at this place Marion and Bascom indulged in threats about Guy White
and another person; that they seemed to anticipate trouble with Guy White, the
deputy sheriff, and expected to kill him. Then a pistol shot was fired by
Marion, and Guy White, the deputy sheriff, hastened to the spot, calling upon
one Snyder, who seems also to have been a deputy sheriff, and one Durrance to go
with him. When Guy White reached the parties, he demanded who shot off the
pistol. Marion answered that he did it, and he says he told White the pistol was
accidentally fired. White demanded the pistol, and in trying to get it a short
struggle ensued; but he finally got it, and then notified the three brothers
they were all under arrest. It appears that Marion was boisterous and used
threatening language, but that Dan counseled moderation and urged that there be
no trouble. Dan told White he had no pistol. No effort was there made to secure
Bascom's pistol. There was evidence from which the jury might have inferred that
the pistol was fired off to attract the attention of White and bring him to the
place, with the view of precipitating a difficulty with him, and of carrying out
the threats that had been made.
After the brothers were put under arrest by White with the aid of a
posse which he had called together, he undertook to take them to a jail or
calaboose, which was some 50 yards away. Espanola was a small settlement; the
houses being some distance apart. On the way to the jail, Marion was
obstreperous, and threatened to kill the whole of the arresters when he was
turned loose. Handcuffs were put on him by Snyder, which White took off as soon
as he reached the jail. The jail was a small wooden building, with a passageway
down one side, and three cells on the other, with doors opening on the
passageway. The deputy sheriff, White, Snyder, and some of the posse escorted
the arrested parties into the passageway; Bascom being the last of the brothers
to enter. They arranged themselves along the passageway in front of the cell
doors. Snyder had his pistol drawn. The evidence on the part of the state tends
to prove that when the parties were all in the passageway, as above indicated,
one of the posse, named Dorman, being next to Bascom, that White then said to
Bascom he would have to search him to see if he had a gun or knife; that White
then attempted to put his hand in Bascom's pocket; and that as he did so Bascom
drew his pistol and fired rapidly twice, killing both White and Snyder. Dorman
seized the pistol in the hands of Bascom, and a struggle took place. The state's
witnesses say that both Dan and Marion seized Dorman, one choking him and the
other holding his arm; but others present came to Dorman's help, with the result
that he held onto the pistol. There was then a separation of the parties; the
defendants leaving the scene, as well as the members of the posse.
The state's witness Durrance says that when he went up to the cold
drink stand to aid White, Marion was very ugly to him, saying to him and Snyder,
who was with him: "You two sons of bitches, I am talking to Guy; if you got any
word against me, say it, you bastards." He also says that when Marion got about
halfway to the jail he said to the men who were guarding him: "You three sons of
bitches, I will kill you if I ever got out of this. I know you." Durrance says
he also heard Dan or Marion, he could not tell which, say, just as the shots
were fired, "Kill all inside and outside." He also says he heard no cursing of
Guy White, though Bascom and Marion protested against being arrested by him. Mr.
Sabate, a deputy sheriff, who arrested Dan and Marion after the shooting on the
night of March 5th, testified that they said to him "that when Bascom killed Mr.
White, shot Mr. White, just previous to the shooting, when they were put in
jail, that they knew he was going to shoot, and they stepped inside into one of
the cells, and he did the shooting;" and, again, that they said "they stepped
into the cell one side to keep out of the way as it was of the shooting." Mr.
Dean testified for the state that on the night of the killing he saw Dan at the
witness' camp, about a mile from Espanola. Dan came to his gate and called
(p.488)him. The witness told him to come in and
sit down, which he did. A fellow named Burney was with him. Dan said, "Well, I
guess you heard what happened." Witness said: "I heard. I hope it is not so."
Dan said, "Well, the Jew, Snyder, is killed." That Bascom killed him. He also
said: "One thing I am sorry of, there was another damned long cracker in there.
I am sorry they didn't kill him." Dan also said "he knowed the thing was going
to happen, and stepped back one side out of the way." He said Bascom told him
that if he ever got that much drop on Guy White he would kill him. He also said
Dan was cutting ties for the witness.
The Carltons deny making the threats which the state alleged were
made before the killing, and they deny saying the accusing things which the
state's witnesses say were made after the killing by Marion and Dan. They all
say that when Bascom shot, White or some one had cried out, "Shoot the sons of
bitches," or words of like import; and Bascom claims that he shot because he
thought he was about to be shot himself. These statements are in conflict with
the testimony of the state's witnesses. The foregoing is a synopsis of the
It is difficult to discover from the brief of plaintiffs in error
what particular assignments of error are most relied on. The first part of the
brief seems to be devoted to a general discussion of assignments "under the
tenth to the twentieth, inclusive." These assignments deal with charges given
and instructions refused. Next assignments, fifth, sixth, seventh, and eighth,
are grouped and discussed together in the brief, as is also done in the case of
the nineteenth and twentieth assignments; and, lastly, the twenty-first,
twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-seventh,
twenty-eighth, and twenty-ninth are grouped, and the court is asked to apply the
arguments made under the other assignments to these. Under these circumstances,
we shall first discuss those assignments that are specifically argued.
Several assignments question the propriety of permitting in evidence
threats, alleged to have been made at Hastings on the night of March 4th by
Bascom and Dan Carlton. We think this evidence was proper as to these two as
showing the animus of the parties. The court instructed the Jury that
declarations and admissions of the declarations were not evidence against such
as were not present.
Under the ninth assignment, it is contended that the court erred in
not permitting Bascom Carlton to prove that he surrendered voluntarily to the
officers. The state had not undertaken to show that he had fled, and no
authority is shown to support this contention, and we know of none.
Assignment 10 questions a charge of the court, based on section 3263, General Statutes of 1906, making it a breach of the
peace to carry concealed weapons, and authorizing an officer to arrest for said
offense without a warrant.
It is first contended that the original act of 1901, of which this
section is a part, is unconstitutional, because its title was not broad enough.
This is now of no moment, as the act is brought forward and re-enacted in
several sections of the General Statutes of 1906.
It is next contended that section 3262 is
unconstitutional, because it excepts sheriffs and other police officers from its
operation, and permits them to carry concealed weapons, which is denied to
others. We are not referred to any special provision of our state Constitution
which this statute is supposed to violate, and none occurs to us at this time.
Apparently the exception or classification is based upon a public necessity
growing out of the difficulties and hazards which sheriffs and other officers
encounter in dealing with dangerous characters. These statutes against carrying
concealed weapons have no connection with section 20 of
the Bill of Rights, which preserves to the people the right "to
bear arms in defense of themselves and the lawful authority of the
state." This section was intended to give the people the means of protecting
themselves against oppression and public outrage, and was not designed as a
shield for the individual man, who is prone to load his stomach with liquor and
his pockets with revolvers or dynamite, and make of himself a dangerous nuisance
to society. See the case of State v. Workman, 35 W. Va. 367, 14 S.E. 9, as reported in
14 L.R.A. 600, and important note; Presser v. State of
Illinois, 116 U.S. 252, 6
Sup.Ct. 580, 29 L.Ed. 615.
The eleventh assignment of error attacks a portion of the charge of
the court defining a conspiracy. The contention is there was no evidence of a
common design to murder Guy White. We think there were facts before the jury
which save the charge from the general attack upon it, which was made. Their
sufficiency was left by the court to the jury.
The twelfth assignment is based on the refusal of the circuit judge
to give an instruction to the effect that an officer was not justified in making
an arrest without a warrant, when the person whom he arrests is not at the time
in the presence of the arresting officer, committing a breach of the peace or
criminal offense, or engaged in open violence by fighting or engaging in a
fight, or about to escape after committing a felony.
It is alleged in the brief that this instruction is based on the
case of Roberson v. State, 43 Fla. 156, 29 South. 535, 52 L.R.A. 751. Since this
decision was made, the statute law has been changed by sections
3262 and 3263, General Statutes of 1906. The latter makes the carrying of
a concealed (p.489)weapon a breach of the
peace, and authorizes any officer to arrest for the offense without warrant.
Section 3929 is broader, and gives an officer authority to
arrest, without warrant, any one who, in the presence of such officer, violates
any of the penal laws of the state, or of any municipality, and makes it the
duty of such officer to arrest, without warrant, and take into custody any
person whom such officer has reasonable ground to believe, and does believe, has
committed any felony, or whom he finds in the act of committing any felony, or
about to commit any felony, or engage in a fight or other breach of the peace.
This section became law since the decision in Roberson v. State, supra.
Section 3626 is as follows: "Whoever discharges
on any public highway or in any unincorporated village within three hundred
yards of any premises, any fire arms, without permission from the occupant of
said premises, or in defense of life, limb or property, shall be punished,"
It may be fairly said that Marion Carlton fired his pistol in the
presence of Guy White, the deputy sheriff. The firing was done within 100 yards
of White's residence, in the village of Espanola; and the only thing that
prevented White from actually seeing the act of shooting was that Marion was
behind the little shed, called a cold drink stand. Evidently White heard the
shot and immediately repaired to the spot where it occurred.
At common law, sheriffs and other police officers, virtute officii,
and all who aid them, are empowered by law to arrest, not only felons and those
suspected of felony, but also persons guilty of a breach of the peace, or just
suspicion thereof, such as night-walkers and persons unduly armed. 2
Hale's P.C. 85, 86. Hale gives weighty reason why peace officers should
have these powers.
In Ramsey v. State, 92 Ga. 53, 17 S.E. 613, it
is held that an officer may arrest, without warrant, for wife-beating, if he
arrives at the scene during the progress of or immediately after the beating; he
being attracted thereto by the noise of the disturbance or the outcry of the
woman. This was based on a section of the Georgia Code, authorizing an officer
to arrest without warrant, if the offense is committed in his presence.
In the case of State v. McAfee, 107 N.C. 812, 12 S.E.
435, 10 L.R.A. 607, it is held that, "where the defendant struck his wife
a blow with a stick in a public road, so near to the officer [a justice of the
peace] that he could hear the sound made by the blow and the cries of the woman,
though, on account of the darkness, he could not actually see the assault, it
was such a breach of the peace in the presence of the officer as authorized him
to arrest the assailant without a warrant." To the like effect are the decisions
in the cases of Dilger v. Commonwealth, 88 Ky. 550, 11 S.W.
651; Hawkins v. Lutton, 95 Wis. 492, 70 N.W. 483, 60 Am.
St. Rep. 131, and note, discussing what constitutes a breach of the
Under the facts of the instant case, we think it clear that Guy
White was authorized to arrest the defendants Bascom and Marion Carlton and Dan
also, if the facts were such as authorized him to believe there was a conspiracy
to produce a breach of the peace in which they were all engaged.
The thirteenth assignment of error is based on the refusal of the
court to give an instruction to the effect that an officer, in making an arrest,
is not authorized to use more force than is necessary. We do not think the
evidence warranted this instruction. There is no evidence that Guy White used
more force in arresting the defendants than was necessary. What we have already
said disposes of a number of the assignments of error.
The fifteenth assignment is based on the refusal of the court to
instruct the jury that, under the law of Florida, a homicide is justifiable,
when committed in the lawful defense of a brother. The difficulty with this
instruction is that it assumes that Bascom Carlton shot White while White and
Snyder were attempting to arrest Dan and Marion Carlton, and they were resisting
an unlawful arrest. The evidence does not warrant such a hypothesis. The
assignments based on the hypothesis that Guy White committed an unlawful arrest
of the defendants, we do not think it necessary to consider. The facts seem to
us to show a lawful arrest.
Several of the assignments of error question the correctness of the
verdict as to each and all of the defendants. All of the Justices are of opinion
that the evidence is sufficient to sustain the verdict as to Bascom Carlton.
Chief Justice WHITFIELD, Justice SHACKLEFORD, and Justice COCKRELL are of
opinion that there is sufficient evidence that Dan and Marion Carlton were
present aiding and abetting in the murder of Guy White. On the sufficiency of
the evidence to sustain the conviction as to Dan and Marion Carlton, Justice
TAYLOR dissents, and the writer dissents as to Dan Carlton.
The judgment below is affirmed as to all the