47 Fla. 1 | Fla. | 1904
— At the September term, 1902, of the Criminal Court of Record of Escambia county, an information was filed by the county solicitor against George Alford and Jack Elsterman charging in substance in the first count that on the seventh of August, 1902, they did wilfully and maliciously set fire to and burn a certain building, to-wit: a dwelling house belonging to E. G. Creighton, and occupied as a dwelling by George Kelly. In the second count they are charged with setting fire to and burning a building, to-wit: a dwelling-house belonging to A. C. Berry, and occupied as a dwelling by George Kelly. At the November term, 1902, of the court, the defendants were tried, Jack Elsterman was acquitted, and George Alford was convicted under the second count, and sentenced to the penitentiary for fifteen years. A writ of error was sued out from this sentence and judgment, on the seventeenth day of July, 1903, returnable to the January term, 1904, of this court.
The first and second assignments of error are based on the striking of the testimony of W. L. Nelms, and of the testimony of Dan Nelms, witnesses for the plaintiff in error, as to the reputation for truth and veracity of Joseph Huggins, a witness for the State. Joseph Huggins had given important testimony for the State against Alford, and the plaintiff in error introduced as a witness W. L. Nelms who testified in chief, as follows: “I have lived in Escambia county, Elorida, about forty-six years, near Muscogee; I
Dan Nelms testified in chief for the plaintiff in error as follows: “I have known Joseph Huggins about twenty-two years; he lived in a house with me two or three months at Cantonement; he lived all around the country; I knew him when he lived at Molino; he lives near Brents Station; I know his general reputation for truth and veracity in this community; it is bad; I would not believe him under oath.” On cross-examination he said: “I live at Stockton, Alabama, and have lived there for the past six years; I have not seen Huggins in the last six years, but during the time mentioned, upon an average of once or twice a month, I visited Escambia county. During this time I have heard his general reputation discussed by different parties; some who lived in the neighborhood of Huggins.” At the conclusion of said testimony the county solicitor moved to strike out all of the testimony of said witness referring to general reputation of Huggins, upon the ground that knowledge of the same by witness is not sufficient, which motion was sustained, the ruling excepted to and assigned as error.
The plaintiff in error introduced as a witness one Maurice Fitzsimmons, who testified as follows: “I have lived in Escambia county, Florida, eight or nine years; have known Joseph Huggins sixteen or seventeen years; a portion of this time he lived about a mile from me, and another portion three-quarters of a mile; I lived near him in Muscogee in this county; it has been several years since I lived in the same settlement with Huggins; I know what his general reputation was for truth and veracity at the time I lived near him. Question. What was that reputation? To the asking of which question counsel for the prosecution objected upon the ground that said testimony was not confined to the settlement in which witness Huggins lived; which motion was sustained, to which ruling plaintiff in error excepted and assigns as error. Under the circumstances of this case, under the_ authority before quoted, the testimony should have been admitted, and the court erred in rejecting it.
The plaintiff in error introduced as a witness one George Corley, and the following examination and proceedings were had: Q. "State whether or not you saw
The first question to which an objection was sustained was perhaps too broad, as it did not indicate otherwise than that its purpose was to lay the foundation for impeaching the witness by showing that she had made contradictory statements; but it appears from the other questions to which objection was made, that they were intended to show the animus of the witness Betsy Gates towards the defendants. In order to show by testimony the bias or hostility of the State witness towards the defendants, we do not think it was essential that a predicate for such testimony should háve been laid in the examination of Betsy Gates. In the case of Bryan v. State, 41 Fla. 643, 26 South. Rep. 1022, this court held: “Questions touching interest, motives, animus or the status of witnesses to the suit, or par
A State witness, E. G. Creighton, testified that a track he saw at the brick-yard near the scene of the fire, on the morning afterwards, he believed to be Alford’s. He also testified that, in his opinion, one of the tracks he saw in the road as he was driving to the brick-yard in a buggy, was Alford’s. His testimony shows that he had some opportunity for observing Alford’s track and becoming acquainted with it. The testimony of the witness as to his “opinion” and “his belief” that the tracks were Alford’s was objected to and motions made to strike them out on the ground no proper predicate had been laid for such testimony. The witness had, stated that when Alford worked for his father at the brick-yard before the time of the fire, he would go to the brick-yard upon the same road that Alford travelled and he could tell in the mornings by the tracks in the road whether Alford had gone on. He stated that Alford’s track,had a peculiarity about it in that it pressed down hard on the outside of the foot, and hard on the inside of the heel. Ordinary witnesses may give their opinions in connection with the facts upon which they
Susie Lisco, a witness for the State, testified that about August 1st, 1902, she was 'at the brick-yard (where the fire occurred); that about 7:30 P. M. that night while Mrs. Bibrick and witness went to the spring to get some water she saw two men by the side of the path and they disappeared in the bushes; that she could not identify the men; they were middle sized, and that she did not pay much attention to them. She was then asked by the county solicitor if she did not state at the preliminary trial that she had an opinion as to who the two men were that she saw. This question was objected to by defendants on the ground that the proper predicate for the introduction of this testimony had not been established, which objection was overruled, to which ruling the defendants excepted. She answered, “yes;” and was then asked, what was that opinion? She answered, my opinion was that it was the defendants. She was then asked is that your opinion now? This question was objected to on the same ground as the former one, the objection overruled, and an exception taken to the ruling. The.witness answered: “I ana' of the same opinion now. I have known Alford for nearly a year and Elsterman for about six months. I called the attention of Mrs. Bibriclc to these parties, and she replied, ‘it is Carl Paul trying to frighten us.’ ” On cross-examination this witness said: “It was just about dark when I saw the men on the way to the spring. The moon was just rising; I saw them just as they dodged into the bushes; I have never seen much of Elsterman or Alford.”
The State witness, Betsy Gates, testified as follows: “The brick-yard is about three miles from where I live; it was burned 7th of August; I saw Elsterman going that way; he came back about sundown; I met Alford going to Elsterman’s; I didn’t go to the fire; I haven’t been there since; I was told place was burned.”
The counsel for defendants moved to strike out the testimony of the witness with reference to the fire, on the ground that same was hearsay, which motion was overruled, counsel for defendants excepted to this ruling, and upon it assign error here. It appears from the whole testimony of this witness that she referred to the date when she heard the fire had occurred only for the purpose of fixing the date when she saw Elsterman and Alford together, and not for the purpose of proving the date of the fire. In the case of Harris v. Central R. R., 78 Ga. 525, 3 S. E. Rep. 355, Chief-Justice Bleckley says: “A wit
Mrs. S. Huggins, a witness for the State, testified that she saw Alford at her house on a Sunday, a few days before the fire, and heard him say he had a grudge against Creighton ever since he came to his house and raised a row with him; said he would pay him before long, and he would not make it light; said he would have him called to the door and shot down with a Winchester, for Winchester bullets did not tell any lies. Her husband was present and two or three children at the table. ' On cross-examination the witness admitted she was not present when that part of Alford’s conversation occurred about calling Creighton to the door and shooting him with a Winchester; that her husband told her of it in the pear orchard. Defendant moved to strike out her testimony because it was hearsay, which motion was overruled, and the ruling is assigned as error. As part of the witness’ testimony was not hearsay, and was competent evidence, the court committed no error in refusing to strike the whole of it. The motion was too broad. Cook v. State, 46 Fla. 20, 35 South. Rep. 665; Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep. 656.
Defendants’ counsel on cross-examination asked a State witness, Betsy Gates, who she had talked to among witnesses for the State. This question was objected to by the county solicitor and his objection sustained, the court stating that it would permit counsel for defendants to ask
The defendants’ witness, Mrs. Martha Fitzsimmons, testified as follows: “I know the general reputation of Joseph Huggins for truth and veracity in the community in which he lived; it is bad; I would not believe him under oath.” On cross-examination she stated 'she had not lived in the same settlement with Huggins for several years. The county solicitor moved to strike out this testimony on the ground that it was too remote. This motion was sustained, exception ,noted, and the ruling assigned as error. Testimony had already been offered tending to show the bad reputation of Joseph Huggins for truth and veracity for a considerable period before and up to the time of the trial. We think under the circumstances of this case the court erred. Gillett on Indirect and Collateral Evidence, sec. 95, supra.
At the conclusion of the testimony the defendant moved the court to require the county solicitor to elect upon which of the two counts of the information he would ask for a conviction — the count charging ownership in E. C. Creighton, or the count charging ownership in A. C. Berry. This motion was overruled, and the ruling assigned as error. The defendant was found guilty under the second count of the information, which amounted to an acquittal on the first count, so that it is not necessary to pass on this assignment as the same question can not arise upon another trial. But in order to prevent any misapprehension of the law we refer to Eggart v. State, 40 Fla. 527, 25 South. Rep. 144, and cases there cited, in which the question involved is settled. See, also, Long v. State, 42 Fla. 509, 28 South. Rep. 775, and cases cited.
The last assignment of error is predicated on the refusal of the court to grant a new trial. Each of the grounds
For the errors indicated the judgment is reversed, and a new trial granted.
Shackleford, Cockrell and Carter, JJ., concur.
Whitfield, J., disqualified, took no part in the consideration of this case.
Taylor, C. J., absent on account of sickness.