#### Charleston Francis, *Plaintiff in Error, v.*The State of Florida, *Defendant in Error.*

Criminal Law — Evidence Not Sustaining Verdict— Judgment Will Be Reversed.

Where there has been a conviction of murder in the second degree, and the appellate court upon a carefully consideration of the evidence finds that it does not make out such offense, but at most might support a conviction for manslaughter merely, such judgment will be reversed.

This case was decided by Division B.

Writ of error to the Circuit Court for Gadsden County.

The facts in the case are stated in the opinion of the court.

*W. 0. Hodges,*for Plaintiff in Error;

*Parle Trammell,*Attorney General, for the State.

*55Taylor, J.

— The plaintiff in error, as defendant below was indicted for, and tried and convicted of the crime of murder in the second degree in the Circuit Court of Gadsden County, and seeks reversal of the sentence and judgment pronounced upon him by writ of error. But one error is assigned and presented here, the denial of the defendant’s motion for new trial made upon the ground that the verdict rendered was contrary to the evidence and to the law. The evidence in full as presented to us in the record brought here is as follows:

Henry Turner, for the State, testified as follows: “I know High Barrow, but I do not know Charleston Francis. I saw some people pass my place on January 28th, 1911, and a few minutes afterwards I heard a shot fired. I ran out there and struck a light, in the dark, and found High Barrow lying down in the road face down. There was a mark where a bullet had come out of the back his head. I turned him over and saw where a bullet had entered his head, just above the nose. I then went about fifty yards, to another man’s house, and got him to come there. I did not see any knife, or other weapon. I held a lamp up and looked around. I stood in one place. Other people were there when I left and other people were there when I returned. I was related by marriage to High Barrow.”

Luke Long, for the State, testified as follows: “Will Long (my brother), Henry Carter, High Barrow and myself were coming from the festival on January 28th, 1911; we met Charleston Francis, Sam Tillman, Amos DeVaughn and Will Sanders on the road, who were going to the festival. We stopped and said 'hello,’ and talked about different things. They ask us how the festival was, and we told them it was quiet, but to go on and have a good time if they could. Charleston Francis spoke *56to High Barrow and ask him to pay him back some money which he owed him. High replied to him, ‘you must be drunk.’ Charleston said, ‘no, I am not drunk.’ Then High said, ‘you must be drunk, man,’ and Charleston said, ‘no, I am not drunk, but I think you treat me dirty about Avhat you owe me.’ Then I heard Charleston say to High, ‘you have got a pistol,’ and High replied, ‘no I have got my damn knife.’ I then pulled High BarroAV aAvay and Will Sanders pulled Charleston Francis away. High walked around behind me going towards his house and Charleston Francis had come to about the middle of the road, which made them face each other, and High said as he walked around me, and said, ‘I will cut your damn throat,’ and right then the pistol fired. They were about ten feet aAvay from each other, as near as I can get at it. We all met in a foot path by the side of the road and when I pushed High back, I pulled him over to the other side of the road and Will Sanders pulled Francis back, but remained on the same side of the road where we all met and Francis went from there toAvard the middle of the road going toAvard the side of the road that High had gone to. I did not see High BarroAV raise his hand when he said ‘I will cut your damn throat.’ It was dark and I heard Charleston say ‘stand back, stand back.’ ”

Henry Carter, for the State, testified as follows: “I was with High Barrow and two other men on January 28th, 1911, coming from the festival, when we met Charleston Francis and four other men, going to the festival. This was in Gadsden County, Florida. We talked awhile about different things and told them to go on to the festival and have a good time. I heard Charleston Francis ask High Barrow to pay him back some money he owed him, and I heard High BarroAV tell Francis that *57he was drunk. Charleston Francis said ‘no, I am not drunk’ and Barrow said ‘you must be drunk’ and Francis said again that he was not drunk. Then I heard Francis say is have you got a pistol, and-he said ‘No I have got my damn knife’ and then Will-Sanders took a hold of Charleston Francis and pulled him back and Luke Long caught High Barrow by the back of his coat and pulled him back and across the road, leaving Francis on the other side of the road. High walked right around Luke Long and said to Charleston Francis ‘I will cut your God damn throat’ and then Charleston Francis shot him. Francis had come to the middle of the road toward the side that we had taken High. Francis was about five steps from High when he shot ¿him. it was a dark night. I could not see any weapons, but I saw the flash of the pistol. I heard Francis say to Barrow, when he stepped around Luke Long ‘get back, get back,’ and Francis took two or three steps back. I think they were about as far apart as from here to the end of that table (about 12 feet). I did not see any knife there. I do not knoAv whether High Barrow had one or not. High Barrow was facing toward Charleston Francis and toward his, High’s house, when the shot Was- fired. The deputy Sheriff came there over an hour aftenvard. There were a lot of others there in the meantime.”

And thereupon the State announced that it rested its case, and the defendant caused to be produced and sAvorn, as a witness, one Amos DeYaughn, who testified as fol lows: “I was Avith Charleston Francis and the others the night that we met in the road in Gadsden County, Florida, on January 28th, 1911. I was going to the festival, Sam Tillman, Will Sanders and Charleston Francis were with me. High Barrow, Henry Carter, Will Long and Luke Long had been to.the festival. We met and- all *58said ‘hello’ and talked about different things. We told them the festival was no good, but they might go on and try to have a good time, if they wanted to. I heard Charleston Francis ask High Barrow to pay him back some money he claimed High Barrow owed him, and they had stepped aside a little ways, when they were talking about it. I heard High Barrow say when he asked him for the money ‘you must be drunk,’ and Charleston answered, ‘no, I am not drunk.’ Then I heard High say again, ‘you must be drunk,’ and Charleston again answered him that he was not drunk. But you have treated me dirty about the money you owe me. Then I heard Charleston say to High, ‘have you got a pistol,’ and he said, ‘no, I have got my God damn knife,’ and Will Sanders caught hold of Charleston Francis and pulled him back, and Luke Long caught hold of High Barrow, and pulled him back across the road, and when he did so High Barrow ran around Luke Long and said to Charleston Francis, “I will cut your God damn throat,’ and lifted his hand up like he had something in it. I heard Charleston say, ‘stand back, stand back; don’t come up on me,’ and then he fired. Charleston was backing back about three steps when he said to High, ‘don’t come up on me.’ High took two or three steps toward Francis, holding up his hand, when the pistol fired. When Francis fired he was about the middle of the road. It was so dark all I could see was the blaze of the pistol when it was fired. They were about ten or twelve feet apart when the pistol fired. I am not related to either Charleston Francis or High Barrow.”

Will ganders, for the defendant, testified as follows: “I was with Charleston Francis, Amos DeVaughn, Sam Tillman going to the festival, when we met Will Long, Luke Long and High Barrow. We stopped to talk in the *59path along the side of the road. It was in Gadsden County, Florida, on January 28th, 1911. We were all friendly and were talking about the festival. I heard Charleston Francis say to High Barrow to pay him back some money he owed him, and High Barrow told him he must be drunk. Charleston Francis said he was not drunk, ‘but that you have treated me dirty about the money you owe me, and they repeated it once or twice. Then I heard Charleston Francis say to High Barrow, 'have you got your pistol?’ and he said 'no I have got my damn knife.’ Then I took hold of Charleston Francis and pulled him back down the road, and Luke Long caught hold of High Barrow and swung him around, but let loose of him just as he swung him around. High Barrow then ran behind Luke Long toward Charleston Francis and said, 'I will cut your God damn throat.’ Charleston backed back two or three steps and said, ‘get back, get back; don’t come on me’ and fired. When the shot was fired High was on the other side of the road from the place where they first started to fuss, and Francis had gone to the middle of the road from the side of the road where Sanders had taken him. High Barrow had his right arm raised when he said, ‘I will cut your God damn throat.’ I do not know what was in his hand. It was so dark all I could see was the flash of the. pistol. I never saw the pistol. When we told Charleston Francis he had killed High Barrow he said, 'Oh, Lord, what will I do? My poor wife and children and walked off down the road.”

. Sam Tillman, for the defendant, testified as follows; “I was present on January 28th, 1911, in Gadsden County, Florida, when High Barrow was shot by Charleston Francis. We were going to the festival and met High Barrow and some others coming from the festival. We *60stopped and asked them how the festival was, and they said it was slow, but that we might have a good time if we went there. Charleston Francis and High Barrow had stepped aside a step or two, and I heard Charleston ask High to pay him back some money he owed him, and he answered, ‘you must be drunk man/ and Charleston an swered. ‘no I am not drunk; I just wants my money and I think you treat me real dirty about it/ and then I heard him say, ‘have you got a pistol ?’ and High said, ‘no, this is not my gun. it is my God damn knife.’ Then Will Sanders pulled Charleston .back and Luke Long pulled High Barrow back. High Barrow ran around behind Luke Long towards Charleston Francis with his right hand lifted up and said, ‘I will cut your God damn throat.’ Charleston Francis was backing back and said ‘get back, get back; don’t come on me/ and then fired. He fired almost immediately after High Barrow said, ‘I will cut your God damn throat.’ They were facing each other when the shot was fired. It was so dark I did not see the pistol and I did not see what High had in his hand. I saw the flash of the pistol when it was fired. I also heard High say to Francis when they were talking about the money, ‘you must be mad/ and heard Charleston say, yes, I am ás mad as I can be/ and then it was I heard Charleston saj*, ‘is that your gun you have got?’ and he said, ‘no, this is my damn knife.’ ”

J. P. Smith, for the defendant, testified as follows: “I know Charleston Francis and I know his general reputation .in the community for being peaceable, orderly and law-abiding, and his reputation is good, and I do not testify this way because he dealt with me as a customer.”

The defendant testified as follows: “I am Charleston Francis. I was going to the festival in Gadsden County, Florida, on January 28th, 1911, with Sam Tillman, Will *61Sanders, Amos DeYaughn, and we met High Barrow, Luke Long, Will Long and Henry Carter. We had never had any trouble with each other. We had been good friends. I had loaned High Barrow some money. We stepped aside a step or two, and I ask him to pay it back to me, and he told me I must be drunk, and I told him I was not drunk, and he repeated that I must be drunk, and said, ‘fellows, ain’t he drunk,’ and I told him no I was not drunk, but I wanted him to pay me what he owed me, because I thought he treated me real dirty about it. Then I saw him run his hand down toward his hip pocket, and I said to him, is that your pistol you have got?’ and he said, ‘no, this is not my pistol, this is my damn knife.’ Then Will Sanders caught hold of me and pulled me back down the road, and Luke Long caught High Barrow on the back of the coat and swung him around and pulled him back, but let him loose, and he ran around Luke Long’s back and took three or four steps toward me, raising up his right hand and said ‘I will cut your God damn throat.’ He was in front of me then, and I then took about five.steps away from him. I stepped back several steps and lifted my hand toward him, and said "stand back, stand back; don’t come on me, but when he said, ‘I will cut your God damn throat’ I was afraid he was going to cut me because he had told me he had his knife and I fired my pistol at him one time. The money he owed me was money he had borrowed from me several months before. I put my pistol in my pocket that night because I expected to' go to the festival alone. I never had had any trouble with' anybody else in my life and never‘had had any trouble before with him.”

And thereupon concluding with this witness, the defendant rested his case, whereupon the State re-called Luke Long in rebuttal, who testified as follows: “I do not *62know what money it was Charleston Francis claimed High Barrow owed him, but I know he did owe him some money for some whiskey, which he got from him once when I was present and which we drank up together,”

Albert Gregory, for the State, testified as follows: “I went to the place where High Barrow was killed and got there an hour or so after he was killed. I carefully searched his body and the ground near his body for a weapon, but found no knife or other weapon.”

Does this evidence make out a case of murder in the second degree? We cannot see that it does. If it does not make out a case of justifiable homicide in favor of the defendant, the most that can be made out of it against him is the crime of manslaughter, and so finding the court below erred in denying the motion for new trial.

The judgment of the Circuit Court in said cause is, therefore, hereby reversed, and a new trial ordered at the cost of Gadsden County.

Hocker and Parki-iill, J. J., concur;

Wi-iitfield,, C. J., and Shackleford and Cockrell, J. J., concur in the opinion.