Bryan v. State

45 Fla. 8 | Fla. | 1903

Cockrell, J.

Under an indictment for an assault with intent to commit murder, the defendant was convicted of an assault with intent to commit manslaughter and sentenced to the. Slate prison for the period of five years.

The first contention is that there is no such offense, common law or statutory, as that of which he was convicted. Such contention is fully met and overthrown by the decision of this court in the case of Williams v. State, 41 Fla. 295, 26 South. Rep. 184, and we see no good reason for changing the views of the law as there expressed.

Another assignment challenges the action of the trial court in permitting the State Attorney to show that one of the State’s witnesses had. made a contradictory statement. The State had put upon ..fie stand the defendant’s wife who gave positive testimony in his favor, prejudicial to the State, and therefore adverse to the party calling her. The State Attorney testified that he was taken by surprise and that the witness had on a previous occasion made a different statement to him. The circumstances of the supposed statement, sufficient to designate the particular occasion, giving the time, place, persons present, and substance of the alleged statement, were mentioned to the witness' and she was asked if she made such statement. On her .denial, two of the persons so named as present were called as witnesses by the State and testified she' did make- such statement. It further appeared that at the time of the original statement She and her husband were not on good terms. The evidence of these later witnesses can not be said to be substantive evidence to .sustain the cause of the party who produced the impeached witness, but its purpose was to counteract the harmful effect of the adverse testimony of such witness. It is not a case óf a mere failure to testify to facts that it was supposed she knew or that would, have been beneficial, as was that of Adams v. State, 34 Fla. 185, 15 South. Rep. 905. The demeanor of the- witness -on the stand enters so largely into the determination of whether or not she be; “adverse” in the meaning of the statute; that much discretion must.be accorded the trial judge in such determination. Williams v. Dickenson, 28 Fla. 90, 9 South, Rep. 847.

It is objected here for the first time that the questions ■propounded to1 these later witnesses were leading. The objections come too late.. See, also, Anthony v. State, 44 Fla....., 32 South.. Rep. 818, and cases cited.. ,

It is further objected that the' impeaching testimony was improperly admitted, becausé the witness só sought 'to be impeached had been examined in chief, turned over to the defense &nd cross-examined before any predicate therefor whs laid. It does not appear that 'there was any -improper motive'on the part of-the State in this delay, nor that the defendant was deceived or injuriously a ffected thereby, and the discretion of' the' Circuit Court in admitting the testimony out of the regular order as to time does not appear to have been abused. Brown v State, 40 Fla. 459, 25 South. Rep. 63.

There was evidence which, if believed by the jury, was sufficient to support the verdict, ana we do not feel authorized, therefore, to .set it asidé:

This disposes of all the assignments ¡of error before us, and the judgment must be affirmed.