Cite as Carlton v. State, 63 Fla. 1, 58 So. 486 (1912)

                    Carlton et al. v. State.

(Supreme Court of Florida. March 26, 1912. Rehearing Denied May 15,
1912.)

     Error to Circuit Court, St. Johns County; R.M. Call, Judge.

      Bascom Carlton was convicted of murder in the 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 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 a writ of error.  Before
discussing the assignments of error, the writer will endeavor to
give a synopsis of the evidence.

     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 someone'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 
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
Dan 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 mere 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 holdings 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 then 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 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 mere 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 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
mere 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 evidence.

     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 his 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 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 weapon a breach of the
peace, and authorizes any officer to arrest for the offense without
a 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." etc. 

     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
nightwalkers and persons unduly armed. 2 Hale's P. C. 85, 88. 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 cases of Dilger v. Commonwealth, 68 Ky. 550, 11 S. W. 651;
Hawkins v. Lutton, 95 Wis. 492, 70 N. W. 483, 60 Am. Rep. 131, and
note, discussing what constitutes a breach of the peace.

     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 vidence 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 defendants.