CALVIN GRAY, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a second-degree murder conviction because the law in effect at the time of the crime required the act to be imminently dangerous to others, and the evidence only showed the act endangered the victim.
No, the evidence did not satisfy the legal definition of second-degree murder at the time of the offense because the act only endangered the person assaulted, not others.
“Under an indictment found in 1887, Calvin Gray was convicted of the crime of murder in the second degree on May 11, 1916, and sentenced to life imprisonment.”
Establishes the timeline of the conviction and the crime.
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Join FLexlaw to unlock all legal intelligenceCalvin Gray was convicted of second-degree murder in 1916 for a crime committed in 1887. The indictment used the term "malice aforethought" instead of…
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[*488] Cockrell, J.
—Under an indictment found in 1887, Calvin Gray was convicted of the crime of murder in the second degree on May 11, 1916, and sentenced to life imprisonment.
We need not consider whether the indictment sufficiently charges murder in the first degree, pleader using the term “malice aforethought” instead of'the statutory term of “premeditated design” (Denham v. State, 22 Fla. 664), seeing that a conviction of murder in the second degree is an acquittal of the higher degree. McCoy v. State, 40 Fla. 494, 24 South. Rep. 485; Richard v. State, 42 Fla. 528, 29 South. Rep. 413.
The homicide having been committed in 1887, we must look to the law as it then existed, to ascertain if the evidence measures up to the crime of which this plaintiff in error stands convicted. See Raines v. State, 42 Fla. 141, 28 South. Rep. 57. At that time an essential element in the crime of murder in the second degree was an act imminently dangerous to others, to many, or to some one other . than the person assaulted. Johnson v. State, 24 Fla. 162, 4 South. Rep. 535; Marshall v. State, 32 Fla. 462, 14 South. Rep. 92.
The careful Circuit Judge in passing upon the motion for a new trial must have overlooked the radical change in the definition of this particular crime as made by the Revised Statutes of 1892, due perhaps also to a similar oversight on the part of the attorneys assigned to the defense. There is no evidence in this record that the act endangered any other than the person assaulted who received the fatal shot.
The judgment is reversed.
Taylor, C. J., and Shackleford. Whitfield and Ellis, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- McCoy v. State, 40 Fla. 494 (Fla. 1898)
- Raines v. State, 42 Fla. 141 (Fla. 1900)
- Geo. W. L. Denham v. State, 22 Fla. 664 (Fla. 1886)
- Richard v. State, 42 Fla. 528 (Fla. 1900)
- Marshall v. State, 32 Fla. 462 (Fla. 1893)
- Johnson v. State, 24 Fla. 162 (Fla. 1888)