38 Fla. 7 | Fla. | 1896
M. M. Driggers, the plaintiff in error, was indicted at the Pall term, 1895, of the Circuit Court in and for Bradford county for the crime of murder committed in that county, and, upon his application, for good cause shown, the venue for his trial was changed to Duval county Circuit Court, where he was tried at the Pall term, 1895, and convicted of murder in the first degree, and sentenced to death; and from this sentence he brings writ of error.
There are twenty-six assignments of error. The first, second, third, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, eighteenth, nineteenth and twentieth of these assignments of error we can not
The evidence showed that the deceased was sitting on his mule when shot, and that the defendant stood on the ground when he did the shooting. The fatal wound was in the upper end of the breast bone, and in the throat and neck, and the shot were shown to have ranged upwards at an angle of about forty-five-degrees. Simeon Driggers, a son of the defendant, who testified to having been present at the shooting, swore that when deceased was shot he was leaning-over on his mule apparently reaching down after the defendant’s gun that was leaned up against the storehouse, with its but resting on the ground. On cross-examination the State Attorney asked him if he was positive that the deceased was leaning over, and upon his responding in the affirmative, the further question was asked by the State: “Is that as true as everything else you have sworn to upon this stand ?’ ’ This question, after it had been answered affirmatively, was objected to upon the broad ground that it was improper, but the court ruled that inasmuch as it had already been answered before being objected to, the-court can not see any harm in it. To which ruling exception was taken, and it constitutes the sixteenth assignment of error. We discover no error in the ruling or in the permission of the question. It was
After the defendant had closed his defense, in which he had introduced testimony tending to show that he had shot the deceased while the latter was leaning over and reaching down to get the defendant’s gun that was leaning up against his store for the purpose of shooting the defendant with it, the State Attorney in rebuttal introduced R. F. Bowden, sheriff of Duval county, who testified that he had overheard a part of a conversation between the defendant and a newspaper reporter in the jail at Jacksonville; the State Attorney asked Bowden the following question: “Did Mr. Driggers say that he had shot Mr. Dowling because Dowling was bulldozing him ? ” The defendant objected to this question on the ground that the witness did not hear and could not state all that the defendant had said on that occasion, but the court overruled the objection, and this ruling constitutes the twenty-first and twenty-second assignments of error. The witness’ answer to this question was: “Mr. Adams (the newspaper reporter) asked him why he shot him, and he said the reason he shot him was because he was trying to bulldoze him.” There was no impropriety in the admission of this evidence. It is true that the general rule is, that all that an accused says to another or in his hearing in connection with
After the testimony in the case had been closed, the State Attorney requested that the jury be allowed to retire from the court room while one of the counsel for the defense was reading law to the court, which request was granted by the court, and to which exception was taken, and it is assigned as the twenty-third error. Under our system the court is the exclusive judge of the law in every case, and the jury must get the law of the case exclusively from the court, and must be governed by such statement of the law as the court shall give them in their application of the facts.. The statement in the bill of exceptions before us shows that the attendance of the jury in court was temporarily excused while the defendant’s counsel was reading law exclusively to the court. Neither the defendant nor his counsel were in any way curtailed in their argument of the law and the facts to the jury, and the ury were not debarred from the benefit of any law applicable to the case as given them by the court, and we can not see that the temporary absence of the jury from the court room while the defendant's counsel was reading law exclusively to the court deprived the defendant of any substantial right, especially when the law of the case was subsequently fully charged upon.
The twenty-fourth and twenty-sixth assignments of error are based upon the refusal of the court to grant the defendant’s motion for a new trial. Most of the grounds of this motion for new trial have already been discussed in disposing of the specific assignments of error predicated thereon, and we will now dispose of such of the grounds of the motion as have not been discussed already. The judge, after delivering his charges on the law of the case in writing, instructed the jury orally as to their duty in having their verdict specify the degree of murder, or of manslaughter. The fact of this portion of the charge given orally is made a ground of the motion for new trial. No exception was taken to the manner in which this part of the charge was given at the time it was given. In the case of Hubbard vs. State, 37 Fla. 156, 20 South. Rep. 235, it was held that although the provisions of section 2920 of the Revised Statutes were mandatory requiring the court to charge wholly in writing in capital cases, and that an oral charge in such a case would be ground of reversal if exception thereto was properly and seasonably taken, that still, if the manner of giving the charge is not excepted to promptly at the time it is given orally, the error will be held to have been waived thereby, and it will not be ground for reversal
The defendant requested the court to give the following charge: “2d. If you believe from the evidence that the deceased in a conversation with defendant, told defendant to shut up and go home, and that he meant it, and that deceased was angry when he said it, and that defendant did shut up and go home, and that after that defendant said to his wife, T am going to have deceased pay me what he owes me, and after this he will go his way, and I will go mine,’ and that defendant wrote to deceased to come and settle with him, and that deceased wmnt to defendant and paid defendant an account which he owed him, and started to leave, and that defendant said to deceased, ‘there is $5 borrowed money which you haven’t paid me,’ and that deceased said, T thought I had paid that,’ and that defendant said, ‘no, you have not paid it,’ and that deceased replied, T believe I have paid it, but damn you, I can pay it again,’ and thereupon paid it and left, and that thereafter deceased saw the defendant and E. F. Chase and Tom Dekle in the road, and that deceased requested Chase to buy him some writing paper at Lake Butler, and that defendant said or did nothing offensive to deceased; that deceased then went on to his home, with Dekle, and left his home to see about some washing, and was returning or going from said house, and while so returning or going, left the direct and usual route and went out of his way,
Another ground of the motion for new trial is, that the court erred in not defining manslaughter. We find that this assignment has no basis in fact, as the judge in his fifth charge in writing defined manslaugh
Accompanying his motion for new trial the defendant filed various affidavits of different persons asserting that the State Attorney in his closing address to the jury had made various improper remarks and arguments to the jury that had been objected to by the copnsel for the defense, and that in some of said statements he had been stopped by the judge, and that others of them he had himself retracted, etc. JSTo rulings of the court appear by the bill of exceptions to have been made upon any objections made to the remarks of the State Attorney, and no exceptions were taken to any such rulings, if any were made. In Willingham vs. State, 21 Fla. 761, it was held that “where an objection to remarks of counsel as violating the right or privilege of argument, or other objection of a similar character, is made in the trial of a cause before a jury, and no ruling of the court thereon is shown by the bill of exceptions, the objection will, be held to have been waived. Likewise, if an adverse ruling is shown, but no exception thereto.” Jenkins vs. State, 35 Fla. 737, 18 South. Rep. 182.
The defendant while testifying as a witness on his own behalf stated that at the time of the tragedy after the deceased rode up to his store on his mule, the latter, cursed him aud reached over from his mule, as he thought, to get defendant’s gun leaning near, against
The only remaining grounds of the motion for new ■trial not disposed of are, that the verdict was contrary to law and to the evidence in the case. The voluminousness of the evidence adduced precludes any rehearsal of it here, when no good purpose could be subserved thereby. We have considered it carefully, and it is ■enough to say here that it amply makes out and sustains the verdict found, of murder in the first degree. The motive for the killing was fully shown, and was nothing more than an unreasoning exhibition of self-assertiveness and self-will on the defendant’s part. He got provoked on the morning of the day of the homicide because the deceased went as surety upon an appearance bond of another party whom the defendant was prosecuting for some criminal offense; he brooded over it all day, and with deliberate premeditation and preparation, and without any sort of excuse •or justification slays the deceased while on a public highway as he rode by his house on a peaceful and proper domestic errand, and then at once proceeded with cool deliberateness to prepare in the hand of the ■dead body of his victim false evidence to conceal his crime. The law of the case was fully and very liberally given in the defendant’s favor, and finding, as we do, that the verdict returned is fully sustained both by the law and facts of the case, and being unable to discover any error in the record, the judgment of the court below is affirmed.