
    Tom Brooks v. State.
    156 So. 23.
    Opinion Filed June 11, 1934.
    Petition for Rehearing Denied July 31, 1934.
    S. N. Smith, for Plaintiff in Error;
    
      Cary D. Landis, Attorney General, and Roy Campbell, Assistant, for the State.
   Buford, J.

In this case the plaintiff in error was indicted and convicted of the crime of murder in the first degree. The jury failed to recommend mercy.

The defense was based entirely upon the theory of self defense. The State supported the material allegations of the indictment by ample evidence. The jury evidently did not believe the statements of the defendant and they had little corroboration.

It is contended that because the accused killed the deceased with a stick or club that this'is a circumstance which shows the lack of premeditated design. There is no merit in this contention. Human beings were killing one another with sticks and clubs before knives and guns were ever invented. The club was the weapon of the primitive man and it is' as effective a weapon at close range today as it was in the earliest days of man’s existence on earth.

In this case the' weapon used was exhibited to the jury and they evidently found it to be a deadly weapon when used as the evidence showed it was used in this cause.

We have carefully examined the record and find no reversible error disclosed therein. The judgment should be affirmed and it is so ordered.

Affirmed.

Whitfield, Ellis and Terrell, J. J., concur.

Davis, C. J., concurs specially.

Brown, J., dissents.

Davis, C. J.

(concurring specially). — In view of the testimony of one witness in this case, whose testimony was evidently believed by the jury, I cannot say as a matter of law that the' verdict of first-degree murder was clearly erroneous. I therefore concur in affirming the judgment as rendered, but with the observation that it appears to me that all that the jury should have found on the evidence as a whole is a verdict of second-degree murder, which is what the evidence tends to prove as a matter of fa.ct, as I view it from an evidentiary standpoint only.

Brown, J.

(dissenting).—This was a fuss between two negroes of a rather sudden character. One negro took up a piece of 4’x 4 scantling which was lying on the ground, and struck the other negro in the head with it, from which lick the latter died. I do not think the evidence shows that was any premeditated design to kill.  