53 Fla. 98 | Fla. | 1907
An information was filed in the Criminal Court of Record for Volusia county, on the 10th day of October, 1905, against the .plaintiffs in error, hereinafter referred to as the defendants, charging Buck Clinton with the wilful and malicious burning of a certain dwelling-house, therein described, and Edward Clinton with being an accessory before the fact of such burning. A trial was had before a jury in May, 1906, which resulted in the conviction of the defendants, and they were sentenced to confinement in the State prison at hard labor, Buck Clinton for a period of ten years and Edward Clinton for a period of five years. The defendants seek to have this judgment and sentence reviewed here by writ of error, returnable to the present term..
The transcript of the record in this cause, Including the bill of exceptions, is poorly prepared and is not in compliance with the requirements of the rules of this court. Special Rule 6, adopted by this court on the 2nd day of March, 1905, found on page 33 of the Rules of the Supreme Court, prefixed tó 51 Fla. (page NV prefixed to 37
The first assignment is as follows: “The court erred in overruling the objections of the defendants to the testimony of Mitchell Aiken, and in permitting said Mitchell Aiken to testify in the case.”
The bill of exceptions discloses the following proceedings in regard to this witness: “On the first day of May, 1906, during the term of said court, an issue joined be
But to the admisión of the said Mitchell Aiken as a witness defendants then and there renewed their objections, on the grounds that the said witness was incompetent, and that his answers to said questions demonstrated that he knew nothing of the obligations of an oath, and was not qualified to testify in this case against the defendants. But the said judge did then and there overrule said objections and admitted said evidence, and permitted said witness to testify in the case fully against the defendants. To which ruling the defendants then and there excepted.”
In the case of Griffin v. State, 48 Fla. 42, text 43, 37 South. Rep. 209, we used the following language: “Three eye witnesses to the shooting were boys aged thirteen, fourteen and sixteen years respectively, and, at the prisoner’s request, they were examined by the court as to the pains and penalties of perjury. The intelligence and comprehension of these boys could be determined better by the judge who had them before him than by us, and we are
This is in line with this established principle that “whether an infant of tender years has sufficient mental capacity and sense of moral obligation to be competent as a witness, is a question for the discretion of the trial judge, and his ruling in that regard will not be disturbed except in. case of a manifest abuse of discretion or where the witness is admitted or rejected upon an erroneous view of a legal principle.” 16 Am. & Eng. Ency. of Law (2nd ed.) 270, and authorities cited in notes ; Underhill’s Criminal Evidence, Sec. 205. It was also an established principle at common law that an infant under the age of fourteen years was presumptively incompetent to testify as a witness, especially in a criminal trial, and that the competency of such infant must be shown to the satisfaction of the court. “It is the duty of the court, when such a witness is offered, to examine him and ascertain whether he has sufficient intelligence and understanding of the nature and obligation of an oath to be a competent witness; aqd the court should carry such investigation far enough to make the infant’s competency • apparent.” 16 Am. & Eng. E'ncy. of Law (2nded.) 267. But, as is said on page 268 of the last cited authority, “Intelligence and not age is the proper test by which the competency of such witnesses must be determined; and where it appears that an infant has sufficient intelligence to receive just impressions of the facts respecting which he is to testify, and sufficient capacity to relate them correctly, and has received sufficient instruction to appreciate the nature and obligations of an oath, he should be admitted to testify, no matter what his age.” We also approve of
Ihe witness in question, according to his own testimony, was fourteen years- of age, which constituí-s the border line, and apparently was not possessed of a high order of intelligence. It also seems doubtful, to say the least of it, if he understood the nature and obligation of an oath. We are not prepared to declare that reversible error was permitted in permitting this witness to testify,' but, as the judgment will have to be revised for other errors, to- be pointed out further on in this opinion, we would suggest that at the next trial the witness be questioned more fully along the lines of his capacity and competency and that, if it seems necessary, he be instructed as to the pains and penalties of perjury and as to the nature and obligation of an oath. We have referred to the transcript of the record in the case of Griffin v. State, supra, and we find that the examination of the three boys who were witnesses therein is more satisfactory and convincing than in the instant case.
It should be borne in mind that the common law rule has been changed in this State and that neither belief in a Supreme Being nor in Divine punishment is requisite to the competency of a witness. See Section 5 of the Declaration of Rights of the State Constitution of 1885, which went into effect January 1, 1887, and Chapter 1036 Laws of 1891, brought forward into the General Statutes of 1906 as Section 1503, which are as follows:
“1503. Atheists May Testify. — Atheists, agnostics, and all persons who do not believe in the doctrine of future rewards and punishments, shall be permitted to testify in any of the courts of this State. They may solemnly affirm instead of faking an oath, and false testifying by said persons shall be perjury, as in case of other witnesses, and shall be punished as now prescribed by law.”
This being true, the cases of Jones v. State, 145 Ala. 51, 40 South. Rep. 947; White v. State, 136 Ala. 58, 34 South. Rep. 177; State v. Washington, 49 La. Ann. 1602, 22 South. Rep. 841, S. C. 42 L. R. A. 553, cited by defendants, are applicable only in part, the States of Alabama and Louisiana requiring belief in Divine punishment in order to render a witness competent.
The second assignment is abandoned.
The third, fourth and fifth assignments are argued together and we shall so treat -them. Harley Jones, a witness on behalf of defendants, had testified that he and Buck Clinton slept together and that Buck Clinton was in the room on the night that the house in question was burned at the time witness went to bed. On cross-examination the following question was propounded to the witness by the State: “Do you remember going up on the train with your brother, Tom Jones, and Harry Sams was on the train, did you not make the statement that you did not
As we shall see later on, the object of the state in so questioning the witness was for the purpose of laying a «ufficient predicate for impend''fig him.
As was said in the case of Newton v. State, 21 Fla. 53, sevenih head note, “The credit of a witness may be impeached by proof that he has made statements out of court contrary to what he has testified at the trial. In laying the foundation for such impeachment, it is necessary to inquire of him as to the time, place and person involved in such supposed contradiction. Then the proof of the contradictions may be submitted to the jury.” Also see the discussion of this point and authorities cited on page 81 of the case cited. Also see Ortiz v. State, 30 Fla. 256, text 275, 11 South. Rep. 611, text 615; Horne v. Carter, 20 Fla. 45, text 55; Simmons v. State, 32 Fla. 387, text 391, 13 South. Rep. 896, text 897. Section 1102 of Revised Statutes of 1892, Section 1511 of General Statutes of 1906, which originally formed Section 53 of Chapter 1096 Laws of 1861, which relates to the impeachment of witnesses by the opponent of the party producing them, expressly provides that before proof of contradictory statements made by a witness can be.admitted, “the circumstances of the supposed statement, sufficient to designate the particular
Having reached this conclusion, it necessarily follows that the fourth and fifth errors, which are based upon the admission of testimony of other witnesses, over the objections of defendants, as to such contradictory statements having been made by the witness, are also well assigned.
Assignments from the sixth to the eighteenth inclusive, are practically all based upon the .overruling of certain objections interposed by defendants to certain questions propounded by the State to different witnesses on behalf of the prosecution as to the respective reputations of defendants for truth and veracity and along similar lines. No useful purpose can be served by setting forth or discussing these assignments in detail.
Since the enactment of Chapter 4400, Laws of 1895, brought forward into the General Statutes of 1906, as Section 3979, the accused may be “sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses.” When the accused exercises the option given by this statute of testifying as a witness he thereby puts himself on the same footing as any other witness. See Milton v. State, 40 Fla. 251, 24 South. Rep. 60, and authorities there cited; Copeland v. State, 41 Fla. 320, 26 South. Rep. 319; Pittman v. State,
An examination of these assignments discloses that these settled principles, or some of them, were violated in the reception of evidence against defendants and that some of the objections interposed thereto were well grounded and should have been sustained. Upon the next trial the principles which we have just enunciated should be followed.
The nineteenth assignment is as follows: “The said court erred in overruling the motion and request of the defendants for permission to get witnesses from their neighborhood to prove their good character by, and in refusing to grant defendants a short time for this purpose.”
We find that at the close of the testimony in rebuttal on the part of the State, defendants expressed their surprise at the admission of testimony, over their objections, impeaching their character, and requested time to obtain
The twentieth assignment is based upon the refusal of the court to give a certain instruction requested by defendant. Suffice it to say that we have examined this instruction and are of the opinion that' it was properly refused.
The twenty-first, which is also the last assignment, is based upon the refusal of the motion of defendants for a new trial. This motion contains' eighteen grounds, but some of them have already been disposed of in the discussion of the other assignments. The only grounds we deem it necessary to treat are those based upon the refusal of the court to sustain the objections of defendants to certain remarks or utterances made by counsel for the State in their arguments to the jury.
We find the following disclosed by the bill of exceptions : “Burt Fish Esq., one of the attorneys for the State
Mr. Landis, one of the attorneys prosecuting for the State in this case, during his argument before the jury used the folloAving language: 'The defendants Avere subpoenaed as witnesses in the circuit court in the case pending against Julius Dry den, and said defendants ran away and for this reason Dryden could' not be tried.’ But to the use of said language to the jury, the. defendants then and there objected on the grounds that: there was no evidence .to authorize such statements and such statements Avere dehors the record, and furthermore such statements might prejudice the minds of the jury against the defend
Mr. Landis, one of the attorneys prosecuting for the State in this case, during his argument to the jury used the following language: ‘The defendants in their testimony tell you that.Ed. Murry and Marion Clinton were at the Clinton home the night of the fire. Why did not they have them here as witnesses to prove their alibi, because they could not prove an alibi by these witnesses, the testimony of these witnesses evidently was not satisfactory to them.’ Marion Clinton was subpoenaed as a witness and Murry was not, by the defendants. But to the use of said language by said attorney, these defendants did then and there object, and move the court to exclude same from the jury and to instruct the jury not to regard it, on the grounds that there was no testimony in this case that Avould authorize such statements, and because the attorney for the State had no right to comment on the failure-of the defendants to have such witnesses present or to-introduce testimony. But the said judge did then and there overrule said objections and motion, and refuse to exclude said statements from the jury, and permitted counsel to continue his argument without giving him any instructions or cautioning him- as to his argument. To which ruling the defendants then and there excepted.
Mr. Landis, one of the attorneys for the State in this case, during his argument to the jury, used the following language: ‘We would have impeached Tom Jones, Harley Jones, Lonie Miller and Tom White, the witnesses brought here by the defendants to prove an alibi, but for
No extended comment upon these utterances of counsel for the prosecution in their arguments to the jury is necessary; there is no possible warrant for them in the evidence. See Newton v. State, 21 Fla. 53, text 92 et seq.; Bradham v. State, 41 Fla. 541, 26 South. Rep. 730; Abbott’s Trial Brief, Criminal Causes (2nd ed.) 601 et seq.; 2 Ency. Pl. & Pr. 727 et seq. The objections interposed by defendants to these utterances should have been sus•ttained and the failure of the trial judge to do so constitutes reversible error.
The judgment must be reversed and a newtrial awarded, and it is so ordered.