70 Fla. 323 | Fla. | 1915
The plaintiff in error hereafter referred to as the defendant, was convicted in the Circuit Court for Dade County of the murder of Joseph C. Keene and was sentenced to punishment by death. The case is here upon writ of error. The crime was alleged to'have been committed in Dade County, Florida, on the 19th day of March, 1914, the indictment was filed May 15th of that year, and the defendant was put upon trial on the 25th day of that month.
There was evidence tending to show that the defendant and the deceased had been friends for many years, they moved from another part of the State to Dade County, owned farms adjoining each other, at one time with their families lived together in the same house and were members of the same church, although shortly prior to the difficulty the church had been divided into two factions, the deceased going with one faction and the defendant going with the other. Sometime before the difficulty in which Keene was killed, the precise time is not shown, the defendant removed himself and family to another house in the neighborhood, but the families of the defendant and deceased continued their friendly relations, frequently visiting at each others homes. On the morning of the 19th of March, 1914, the deceased in company with his son, a lad of about thirteen years, went to his field and on the way stopped at the defendant’s house and called to him to “come on, let’s go,” or was called to by the defendant and invited to “come in,” the witnesses do not agree on this incident. The defendant did not go with the deceased, nor did the deceased go into the de
The first assignment of error is based upon the action of the court in overruling the defendant’s objection to a question propounded by the State Attorney to the witness R. E. McDonald on rebuttal. The question was:
“Were there any gun wads between the turn row and these foot prints where the young Keene boy said that Crawford was standing?” McDonald replied that he found none although he examined the ground. The turn row was the line dividing the field of the defendant from that of the deceased. The State had undertaken to show that the defendant, after entering his field, crossed over into the field of the deceased and fired the shot that killed Keene. McDonald had testified, when first introduced by the State, that he saw tracks on Keene’s side of the line, and to the finding of a gun wad a few feet from those tracks. The defendant had undertaken to show that the gun was fired by him while on his side of
That the defendant went into Keene’s field to fire the' shot was' a very material question, bearing greatly upon the defense of justification, but between this fact and the finding of no gun wad by McDonald between the line dividing the fields and the point in Keene’s field, where it was claimed the defendant stood and fired the shot, there is no relativeness, there being nothing to show that the conditions under which the gun was fired rendered it probable that the gun wads would fall to the ground within a certin distance from the point where the gun was fired.
The case of Starke v. State, 49 Fla. 41, 37 South. Rep. 850, referred to in the Attorney General’s brief is not in point, for in that case the defendant, sought to show that his- manner and conduct and speech Was the result of insanity; the' State in rebuttal introduced testimony to show that his peculiar conduct and speech was due to the influence of intoxicating liquor, of which he had partaken; the court held the evidence to be admissible.
The second assignment also relates to the admission in evidence over defendant’s objection, of testimony introduced in rebuttal. This assignment should, fail because the evidence sought was-contradictory of the statements made by the defendant as to his opinion of the' pistol owned by Keene as an accurate and powerful weap
The defendant asked for a view of the premises, which was denied by the court, and the ruling- is assigned as the third error. There is nothing in the record to show that a refusal to grant the motion of the defendant was in anywise injurious to- him, nor that a view of the premises was essential to a better understanding by the jury of the evidence submitted. The statute is not obligatory upon the court, leaving it to be ordered as in his discretion the necessity of the trial requires. General Statutes §3989; Galena & S. W. R. Co. v. Haslam, 73 Ill. 494; Springer v. City of Chicago, 135 Ill. 552, 26 N. E. Rep. 514, 12 L. R. A. 609; Tully v. State, 69 Fla. 662, 68 South. Rep. 934. See also note in 42 L. R. A. 368; Thompson v. State, 52 Fla. 113, 41 South. Rep. 899.
The fourth and fifth assignments of error are well taken. For the purpose of impeaching the testimony of the defendant who- was sworn as a witness at the trial, the State asked him1 if he did not testify before the Coroner at the inquest, he replied that he did. The defendant’s testimony at the inquest was then read to him and he was asked if he d,id not so- testify; he replied: “I did not say that; see if you see my name signed to* that.” The State Attorney said: “There is no name.” The defendant then said: “I refused to sign it from the simple fact that it was not what I said.” The defendant was under arrest when he testified before the Coro
The objection made by the defendant’s counsel was not technically accurate, nor was it very clear; but we think that it was sufficient to direct the court’s attention
The statement was offered to impeach the testimony of the defendant. So the question is presented: Whether a statement under oath by a person under arrest before a committing magistrate or Coroner having under in
There is little or no difference in effect upon the jury, whether the confession is admitted as part of the State’s case in chief or later during the trial, to impeach the testimony of the defendant; the jury hears it and acts upon it and the consequences to the defendant are the same, his legal rights as a prisoner are thus violated, and his conviction unlawfully obtained. We do not approve the narrow reason which seeks to- justify the admission in evidence of a confession unlawfully obtained, but hold that being inadmissible as evidence against the defendant in the one case, it is inadmissible as evidence against him- in the other. His becoming a witness in his own behalf does not change its unlawful character, nor does he thereby' waive his right to its exclusion. See 1 R. C. L. p. 575; Harrold v. Territory of Oklahoma, 169 Fed. Rep. 47, 17 Ann. Cas. 868; Dedge v. State, 68 Fla. 240, 67 South. Rep. 43.
Section 39791 General Statutes of Florida, 1906, provides that “In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf and shall in such case be subject to examination as other witnesses ; but no accused person shall be compelled to- give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf, and a defendant offering no testimony shall be entitled to the concluding argument before the jury.”
In the case of Maloy v. State, 52 Fla. 101, 41 South. Rep. 791, this court said that: “A defendant taking the stand as a witness may as a witness be impeached as any other witness.” But the court did not mean by that language to- convey the idea that an accused person by
That the statements made by the defendant before the Coroner were inadmissible in evidence against him, because he was under arrest for the alleged crime at the time, and, was sworn as a witness to. testify before the Coroner, who1 did not advise the defendant of his rights, nor warn him that his statements could be used against him on the trial, is sustained by many decisions of this court. Daniels v. State, 57 Fla. 1, 48 South. Rep. 747; Jenkins v. State, 35 Fla. 737, 18 South. Rep. 182; Green v. State, 40 Fla. 474, 24 South. Rep. 537; Howell v. State, 66 Fla. 210, 63 South. Rep. 421.
During the trial of this case, Martha Keene, a daughter of the deceased, was called by the State as a witness in chief. She testified that Monday morning prior to the day on which her father was killed, the defendant came to Keene’s house, went into a bed room which the girl was cleaning, and made improper proposals to her, catching her by the arms and holding her while
When Martha Keene was called as a witness, her testimony certainly at that stage of the case was improper,
The defendant’s defense was justification by self defense. He had testified that early Thursday morning the deceased had made an assault upon him with a deadly weapon, and in the field later that day advanced upon defendant in a threatening manner with a deadly weapon which deceased had carried to the field with him. Martha Keene’s testimony as to the defendant’s assault upon her, which information she had communicated to her father, afforded a motive or reason, however unjustifiable in law, for the assault which defendant said the deceased made on him in the field; thus tending to support the defendant’s defense; it also tended to contradict the testimony of the defendant as to the reason for the assault made by the deceased, being a church controversy or religious disputation. No illicit relations were shown to> exist between the defendant and the daughter of the deceased; on the other hand, Martha Keene’s testimony showed conclusively that no such relations existed; her testimony therefore was not admissible on the authority of the Johnson case, 24 Fla. 162. 4 South. Rep. 535, but the evidence did furnish a motive for, and explanation of
Jim Key was one of the jurors who tried the case. The verdict was signed by “J. M. Key, Foreman.” The receipt of this verdict is assigned as the seventh and eighth errors. There is no contention that J. M. Key who signed the verdict as Foreman was not the same individual who as one of the jury and whose name appeared among- the list as “Jim Key” sat upon the case.
The fact that the juror who1 signed the written verdict with his initials instead of an abbreviation of his first name as it appears in the list, does not vitiate the verdict. If the verdict had been delivered orally by the foreman it could not have been attacked in the absence of a showing that he was not the individual who was selected as one of the jury to try the case. These assignments are not sustained. Malony v. Harkey, Ga. Dec. Pt. 2, 159. See also Commonwealth of Pennsylvania v. Potts, 47 L. R. A. (N. S.) 714, note; Brewer v. State, 53 Fla. 1, 43 South. Rep. 423, 12 Ann. Cas. 79.
As the case will have to go back for another trial, we will not consider the ninth assignment of error which attacks the sufficiency of the evidence to support the verdict.
The tenth assignment of error attacks the entire general charge of the court; it will therefore not be considered except so far as is necessary to ascertain if any one of the several instructions was properly given. Peeler v. State, 64 Fla. 385, 59 South. Rep. 899. The same rule applies to the eleventh assignment which groups in
The general charge of the court was full, clear and impartially stated the law applicable to the case. The refusal to give charges number five and seven, which the defendant requested, were correctly refused, because fully covered by the court in its general charge. In the general charge the court’s instructions on the burden of proof and the law of self defense were full and clear, and all that the defendant might reasonably ask. These assignments are not sustained.
For the errors pointed out, the judgment of the court is reversed and a new trial ordered, costs to be assessed against Dade county.
Taylor, C.‘ J., and Shackleford, Cockrell, and Whitfield, JJ., concur.