
    Lawrence Miller, Plaintiff in Error, v. The State of Florida, Defendant in Error.
    
    Opinion Filed December 1, 1914.
    The evidence in this case examined and found sufficient to sustain the verdict.
    Writ of error to Circuit Court for Polk.County; F. A. Whitney, Judge.
    
      Judgment affirmed.
    
      O. B. Parlchill and J. W. Brady, for Plaintiff in Er(ror;
    
      T. P. West, Attorney General, and G. 0-. Andrews, Assistant, for the State.
   Hocker, J.

Lawrence Miller was indicted in the Circuit Court of Polk County at the Fall Term A. D. 1913, for an assault to murder one Henry Burke. On the trial he was convicted as charged and sentenced to the State Prison for ten years'. The assignments of error here question first, the sufficiency of the evidence to support the verdict, and second, the sentence as being excessive.

A State’s witness testified that on the day before the shooting Miller-, told the witness he was going to shoot Burke to scare him because he had caused a separation between Miller and his- wife and he was going to get revenge.

It is not easy to determine from the evidence how the encounter took place in which Miller shot Burke. It seems that Miller was stationed in a scrub near a road along which Burke passed, and when he got within about fifty yards of Miller the latter shot at him several times, with a shot gun loaded with either number four or number six shot. Burke was struck by shot in several places. There is no testimony that he was severely wounded. The defendant says that Burke was armed with one or more pistols, and there is some evidence that Burke had threatened Miller’s life before the encounter took place.

There is no evidence that Burke either shot at Miller or attempted to do so. Miller insisted that he shot simply to scare Burke, to keep him from his wife and that he was afraid of him.

We are not able to say that the jury as reasonable men might not have found the verdict which they rendered. The parties to this transaction evidently belonged to a turbulent class.

It is contended that the size of the shot used and the distance the parties were apart when the shooting occurred showed that Miller had no purpose to kill Burke. The evidence is not such as would justify us in substituting our judgment for that of the jury and the Circuit Judge upon this point.

The sentence imposed was within the limits of the law and its alleged severity would be a matter for the consideration of another department of the government.

The judgment is affirmed.

Shackleford, C. J., and Taylor, Cockrell and Whitfield, J. J., concur.  