#### Cleveland Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 39484.

Supreme Court of Florida.

July 12, 1971.

Rehearing Denied Oct. 7, 1971.

Robert E. Jagger, Public Defender and Joseph F. McDermott, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and J. Christian Meffert and Nelson E. Bailey, Asst. Attys. Gen., for appellee.

HALL, W. TROY, Jr., Circuit Judge:

This is a direct appeal from a judgment of the Circuit Court in and for Pinellas County adjudging the defendant Cleveland Lee Johnson guilty of murder in the first degree and a sentence of death. His appeal, pursuant to Florida Constitution Article V, Section 4(2), F.S.A., raises three *362points of alleged error at the Trial Court level. The alleged errors are:

> 1. Whether the trial judge erred in reversing his ruling regarding a mistrial.

> 2. Whether evidence (a gun, the death weapon) was obtained as a result of an illegal search and seizure.

> 3. Whether the court erred in refusing to grant and give a particular jury instruction requested by the defendant.

We have reviewed and considered all points on appeal, together with all rulings, orders and instructions to the jury appearing in the appeal papers, and, pursuant to Section 924.32(2) F.S.1969 (Now Florida Appellate Rule 6.16, 32 F.S.A.), we have also reviewed the evidence to determine if it is sufficient to support the judgment and whether the interests of justice require a new trial.

For the purpose of clarification and illustration the voluminous record of factual and procedural circumstances attending this case of Murder in the First Degree may be summarized as follows:

During the month of August of 1969, Cleveland Lee Johnson and several others involved in this case got together at a spot referred to as “The Little Delicatessen” located at #769 on 22nd Street South, St. Petersburg, Pinellas County, Florida. The things reportedly done and said then and there were, to say the least, very indelicate. Some of those in attendance apparently hit the bottle excessively; engaged in illegal games of chance and became angry and belligerent when lady luck failed to support their efforts at the card table; violence flared among the patrons of “The Little Delicatessen”; ill will grew and fear or vengeance motivated several of the players to carry guns, one of which became the death weapon herein.

Cleveland Lee Johnson went to “The Little Delicatessen” Saturday night (August 23, 1969), apparently resentful toward one Nelson Barrett who had allegedly previously mistreated him by creasing his head with a bullet, and made certain statements to the proprietor of the place, Joseph Rodriguez, about killing Nelson Barrett. The proprietor, Rodriguez, attempted to dissuade him and urged him to forget it and avoid trouble. Johnson left but later returned apparently still in a belligerent mood. Eventually Johnson and Barrett, with others, again engaged in a card game (Sunday morning, August 24, 1969). It should be noted that Johnson, who complained about Barrett shooting him a few hours earlier, did not bother to seek medical attention for his alleged head wound until considerably later, after he was arrested for shooting and killing one Alfonso Gamble, a person reportedly unknown to Johnson.

The evidence is clear and convincing that there was ill will of long standing between Cleveland Lee Johnson and Nelson Barrett and that Johnson went to “The Little Delicatessen” looking for Barrett; that he carried along his pistol for the purpose of shooting Barrett; that he did shoot Barrett; that one of the bullets fired by Johnson at Barrett went on and hit Gamble in the heart. Gamble died from the wound inflicted itpon him by Johnson. Gamble was not a participant in the fight between Johnson and Barrett. Gamble was not known to Johnson. There was no ill will between them. Gamble simply happened to be in the wrong place, for him, when he was hit by the bullet Johnson intended for Barrett.

During the fracas Johnson succeeded in hitting his adversary Barrett with several bullets, but did not succeed in killing him, as he obviously intended. After Barrett was shot down, Johnson left “The Little Delicatessen” and went to an automobile parked in front of the place. Barrett got up, went to the front door and fired several shots at Johnson but did not score a hit on him at that time. He had, the night before, creased Johnson’s skull with a bullet. John*363son fled the scene in the borrowed automobile.

The police were alerted and a pick-up order was issued for Johnson. An alert officer in a patrol car observed the borrowed car pull up at Johnson’s home. As Johnson was getting out of the car on the passenger side, an officer identified himself and told Johnson that he was under arrest for murder. The policeman proceeded to search Johnson for weapons whereupon Johnson complained that he had been shot in the head. The officer, demonstrating a commendable humanitarian consideration for his prisoner and not knowing the nature or extent of Johnson’s wound, without delay rushed Johnson to the hospital for medical attention. Johnson was subsequently taken to jail. Meanwhile another officer who had been stationed at and remained with the borrowed “getaway car” looked through the glass and saw a pistol protruding about three inches from under the front seat on the driver’s side of the automobile.

The officer stationed by the car did not open it to remove the gun he observed, but waited until the arresting officer returned from his humanitarian trip to the hospital. The arresting officer who removed the pistol was not the one who discovered it, but simply followed the information and direction of the attending officer who discovered it by a plain view of it through the auto glass.

The gun was ultimately received in evidence over objection of the defendant. A ballistics expert testified that the death bullet recovered from the body of Alphonso Gamble was fired from the gun found in the getaway car driven by Johnson.

As to alleged error Number 1 on appeal:

> Whether The Judge Erred In Reversing His Ruling Regarding A Mistrial.

We find thd theory and contention of the defendant on this point is not well founded in law and the argument offered in support thereof is not persuasive. We hold that the denial by the Trial Judge of the motion for a mistrial under the circumstances reported in this case was proper.1

As to alleged error Number 2 on appeal:

> Whether Evidence (A Gun, The Death Weapon) Was Obtained As A Result Of An Illegal Search And Seizure.

The factual circumstances reflected by the case record herein considered in the light of the applicable rules of law and procedure require that we reject the theory and argument of the defendant and we hold that the evidence (the death weapon) was legally seized and properly received in evidence.2

As to alleged error Number 3 on appeal:

> Whether The Court Erred In Refusing To Grant And Give A Particular Jury Instruction Requested By Defendant.

The requested instruction was as follows :

> “DEFENDANT’S REQUESTED JURY INSTRUCTION NO_”

> “CHARACTER OF DECEDENT— The Court charges you that the character of the decedent is a proper matter for your consideration, and you should consider it in connection with all the other evidence in the case, and should give to it such weight as you may deem proper in connection with the whole of the testimony, in determining whether or not the said decedent, at the time he was shot, acted in such a manner as to give the defendant, as a reasonable prudent man, reasonable cause to apprehend such *364danger of death or great bodily harm at the hands of the decedent as to justify the defendant in shooting on the ground of self-defense.”

It should be noted that the requested instruction referred to the character of the deceased, Alphonso Gamble, a stranger to the defendant and whose character was unknown to the defendant. The requested instruction was obviously defective and properly refused by the Trial Court. Moreover, the subject matter of the instruction was adequately covered by other instructions which were given by the Court to the jury.

On this point the law is clear and we must reject the theory and argument of the defendant and hold that the requested instruction was properly denied by the Trial Judge.3

It is basic in our criminal law that instructions must be considered in relation to each other and all together and not in isolation. Instructions in a capital homicide case must give the jury a full, fair, complete and correct statement of the rules of law applicable to the case, but material errors and inaccuracies in various charges of the Trial Judge’s complete instructions to the jury may be corrected and cured by other charges given, and if it appears from the whole record that the jury could not have been misled by the instructions, then the conviction should not be reversed on account of any alleged inaccuracy of a single charge.

We have carefully studied the complete instructions given by the Trial Judge in this case and find them, when considered all together, to be adequate under the law.

The facts gleaned from the record in this case show a commendable example of alert, efficient and well co-ordinated police work, tempered with a sincere demonstration of humanitarian consideration for the wounded defendant under arrest.

We find and determine that the evidence is sufficient and that no prejudicial error has been demonstrated and that the interests of justice do not require a new trial. We therefore affirm the judgment and sentence of the Trial Court.

ROBERTS, C. J., ERVIN and CARLTON, JJ., and MASON, Circuit Judge, concur.

BOYD, J., dissents with opinion.

DREW (Retired), J., dissents with opinion and concurring specially with dissenting opinion of BOYD, J.

1

. Williams v. State, Fla.App., 243 So.2d 215;

> F.S.A. Section 924.33;

> Salter v. State, 152 Fla. 284, 10 So.2d 809.

2

. Vol. 29 Fla.Jur. 226, “Search & Seizure”, § 12;

> Fletcher v. State, Fla.App., 168 So.2d 162;

> Boim v. State, Fla.App., 194 So.2d 313;

> Blake v. State, Fla.App., 112 So.2d 391;

> State v. Smith, Fla.App., 193 So.2d 23.

3

. Williams v. State, Fla.App., 243 So.2d 215;

> Tootle v. State, 100 Fla. 1248, 130 So. 912.

BOYD, Justice

(dissenting);

I must dissent. The failure of the trial court to give a proper charge on excusable and justifiable homicide, as applicable to the facts of this case, coupled with the giving of a misleading charge, constituted prejudicial error requiring a new trial.

In this case defendant was shooting at a man named Barrett, allegedly in self-defense, when he hit and killed a third party bystander, a man named Gamble. He was tried and convicted of murder in the first degree in the death of Gamble.

Since the shooting was admitted, the essential question in the case was the defense of justifiable or excusable homicide.1 On *365this the jury was charged in part as follows :

> “A homicide committed in self-defense, that is, in the defense of the life of the accused or to protect his person from imminent danger of great bodily harm, is a lawful homicide and justifiable. The right of self-defense is recognized by law and surrounded by certain well-established rules. In the first place, a person relying upon self-defense to justify a homicide must himself be reasonably free from fault in the inception of the difficulty in which the homicide is committed, and it must be necessary to resort to the means used to protect his life or himself from imminent danger of death or great bodily harm, that is sufficient although there *life of a deceased need not be actual.*If the circumstances surrounding the accused were such as would induce an ordinarily prudent man to believe that he was in danger of death or great bodily harm that is sufficient although there was no danger in fact. One cannot by his own act provoke a difficulty with his adversary and, having provoked such difficulty, act under the necessity produced by this difficulty and kill his adversary or anyone else and justify homicide under the plea of self-defense.” (e. s.)

The italicized language is misleading since the deceased in this case was shot accidentally while defendant was shooting at another person. The question of “necessity to take the life” could only be applicable to the shooting of Barrett, the alleged assailant, who was wounded but not killed by the defendant.

In addition to the foregoing error, the trial court failed to give any charge on the extension of the defense of self-defense, to cover the killing of a bystander. An appropriate charge would have been:

> “[I]f the killing of the party intended to be hit would, under all the circumstances, have been excusable or justifiable homicide, upon the theory of self-defense, then the unintended killing of * * * a bystander, by a random shot fired in the proper and prudent exercise of such self-defense, was also excusable or justifiable.” 2

In Pinder v. State,3 the following charge was given:

> “(3) To constitute excusable homicide by reason of the defendant acting in self-defense, it is necessary that the defendant should have perpetrated the act under the well-grounded belief, justified by the surroundings, that *it was necessary to take the life of the person slain*in order to save his own life, or to prevent great bodily harm to himself, at the time he fired the fatal shot.” (e. s.)

In *Pinder*this Court reversed the conviction of murder in the first degree and death sentence, finding that the giving of the foregoing charge was “the most serious error, the one that we think tended most to the prejudice of the prisoner.”4 The Court stated:5

> *“[TJhis third instruction is erroneous, when applied to the facts in this case, because it deprived the defendant of the defense founded upon the theory that the killing of Joseph Tillman, the deceased, was unintentional, and accidentally brought about by the excusable or justifiable defense of himself against impending danger from a third party.*While we do not pretend to say that this defense was maintained by the evidence before us, yet we do think that such a defense was deducible from the evidence, and the *366prisoner should not have been shut off therefrom as he was by this third instruction, wherein the jury is told that, in order to excuse the homicide upon the theory of self-defense, the defendant must show ‘that it was necessary to take the life of the person slain in order to save his own life,’ etc. It was for the jury to determine from the evidence whether the killing of Tillman under the circumstances was unintentional, and purely the result of a random shot fired by the defendant at another party; and whether the defendant fired that random shot with the degree of prudence, discretion, and care for the lives of others as the surrounding circumstances at the time would justify, in the excusable or justifiable defense of his life or person from impending imminent peril at the hands of the party shot at, but missed.” (e. s.)

In the instant case the errors committed in instructing the jury were not raised in the trial court or argued here as a ground for reversal. These errors are fundamental, however, and in a capital case, the duty of this Court is not limited to consideration of errors assigned by counsel.

Accordingly, I would reverse and remand for a new trial.

DREW (Retired), J., concurs specially.

1

. 16 Fla.Jur., Homicide § 56: “If the slaying of an attacker would in the circumstances be self-defense, the person attacked will be free from liability if, in attempting to defend himself, he unintentionally kills a third person. A defense of this nature is a mixed one — justifiable so far as the defense of the defendant against his assailant is concerned, excusable insofar as it covers the missing of the assailant and the killing of another.”

2

. Pinder v. State, 27 Fla. 370, 380, 8 So. 837, 841 (1891); Foreman v. State, 47 So.2d 308, 309 (Fla.1950).

3

. 27 Fla. 370, 8 So. 837 (1891).

4

. Id. at 383, 8 So. 840.

5

. 27 Fla. 370, 385, 8 So. 837, 841 (1891).

DREW, Justice, Retired,

concurring specially with dissenting opinion of BOYD, J.

F.A.R. 6.16, subd. a provides: “* * * The court may also in its discretion, if it deems the interests of justice to require, review any other things said or done in the cause which appear in the appeal record, including instructions to the jury. * * * ”

I don’t think the error committed by the trial judge, pointed out in the dissenting opinion of Justice Boyd, attains the status of “fundamental error” but I am firmly of the view that this case presents a classic example of the wisdom of the above rule, for, in my judgment the death sentence here can only be explained by assuming the jury was misinformed by the charges as given.

Therefore, subject to my observation concerning fundamental error, I concur in the dissent of BOYD, J.