Padgett v. State

Citations

• 40 Fla. 451

Syllabus

<p>Criminal Law — Homicide—Duty to Retreat — Burden of Proof— Instructions on Form of Verdict — Indictment—Sufficiency of —Rejection of Words in as Surplusage.</p> <p>1. The well-settled rule is that where a party is himself at fault and provokes the difficulty, he can not justify killing his adversary in the affray that he himself has brought about, unless, he in good 'faith withdraws from the combat in such' manner to show his adversary his intention in good faith to desist.</p> <p>2. • An instruction is properly refused that puts the 'burden upon the State in a criminal trial of negativing beyond a reasonable doubt matter that is defensive, and the burden of showing which affirmatively is upon the defendant, and that, too, whether the defendant affirmatively establishes such defensive matter by proof or not.</p> <p>3. Under the provisions of Section 8383, Revised Statutes, requiring the degree of homicide found by the jury from the proofs to be expressed in the verdict, it is proper for the judge to instruct the jury to comply with its provisions as to the form of their verdict in such cases, in the event of conviction, but in such cases it is not necessary to offer the jury any special suggestions as to the form of the verdict in the event of acquittal.</p> <p>4. Words in an indictment, that are not necessary or essential to describe or charge the offense, and that are not descriptive of any matter necessary to be proved, and that may be dispensed with without destroying or materially changing any essential allegation in such indictment, may be rejected as surplusage- Under the provision of Section 8380, Revised Statutes, an indictment for murder that charges an assault with a pistol upon A, with a premeditated design to effect his death, and then alleges the discharge of such pistol with a premeditated design to effect the death of B, and then charges the infliction of the mortal wound upon A, with the premeditated design to effect A’s death, is sufficient to s