51 Fla. 57 | Fla. | 1906
(after stating the foots.) It is assigned as error that the trial judge erred in sustaining a challenge for cause made by the State to a juror. The juror
It is contended that inasmuch as the law requires two witnesses, or one witness and corroborating circumstances to convict of perjury, that the questions and answers did not afford legal ground for sustaining’ die challenge to this juror, and that the defendant was injured by the ruling, inasmuch as after exhausting his challenges, a juror was forced upon him to whom he objected. The objection to this juror was based entirely upon the ruling of the court in rejecting the two jurors above referred to, and not upon any other ground. There is nothing to suggest that he was not in every way competent, qualified and unbiased. It is not a sufficient ground of exception that against his objection a juror was rejected by the court upon even insufficient grounds, unless, through rejecting a qualified person the necessity of accepting an objectionable juror has been created. It is enough that it appear that the case has been fried by an impartial jury. 1 Thompson on Trials, Sec. 120. The discretion of a trial judge in rejecting a juror will not be disturbed unless it is shown that there was an abuse of such discretion prejudicial .to the defendant.
P. D. Cassidey, Clerk of the Circuit Court of Duval county, and A. G. Hartridge, State Attorney of the Fourth Circuit, testified on behalf of the State that the defendant Leaptrot was sworn on his voir dire as a juror on the trial of the case of the State against Jake Bradford charged with murder, and that he was examined as to his qualifications as a juror by the Circuit Judge; that he was asked by the judge whether or not he had formed or expressed any opinion as to the guilt or innocence of Bradford, or whether he was sensible of any bias or prejudice either for or against the said defendant, and that he answered that he had not formed or expressed any opinion as to Bradford’s guilt or innocence, and was not sensible of any bias or prejudice. This evidence was objected to as not the best evidence, as secondary and hearsay. These objections are not tenable We are of opinion that these questions and answers were very properly proven by the Clerk and State Attorney who were present and heard them, or that they might have been proven by any competent witness who heard them. They were not matters of record. 2nd Archibald’s Cr. Pr. and Pleading 1744.
The defendant offered to prove by Rev. J. T. Boone, the following: “I am pastor of the First Christian Church here. I know the defendant, and have known him for a long time. He has been a member of ny church and as pastor I have had frequent occasions to see and observe him, and familiarize myself with his manners and habits. I have known him for several years, and have had frequent occasions to notice any peculiarities of mind which he might possess. I knew him just prior to the time he was
When we consider that in this case the chai’ge was perjury committed by the defendant “knowingly, falsely, corruptly, wilfully and wickedly,” it seems to us that the mental condition of the defendant at the time the alleged false oath was taken, and his physical condition as bearing on the mental—including his powers of memory, were proper subjects of investigation on his trial. It was not necessarily a question of his sanity or insanity. A man may be sane and yet by reason of illness or other cause have a very defective memory. McCord v. State, 83 Ga. 521.
In 2 Bishop’s Criminal Law, Section 1045, Hawkins is quoted as follows: “It seemeth that no one ought to be found guilty (of this offence) without clear proof that the false oath alleged against him was taken with some degree of deliberation. For if upon the whole circumstances of the case it shall appear probable that it was owing rather to the weakness than perverseness of the party, as where it was occasioned by surprise, or inadvertency, or a mistake of the true state ,of the question it
The seventh assignment of error is based on the refusal of the trial .judge to instruct the jury to render a verdict of not guilty at the close of the evidence for the-prosecution. This motion was not applicable to a crimiinal case- and was properly refused. Boykin v. State, 40 Fla. 484, 24 South. Rep. 141; McCray v. State, 45 Fla.
The eighth assignment is based on the refusal of the trial judge to give eight instructions requested by the defendant. We do not think it necessary to discuss these instructions and add to the bulk of this opinion, further than to say that we think, under the evidence, the defendant was entitled to an instruction requiring the jury to take into consideration the mental condition of the defendant whether failing or normal, his memory whether good or bad, as bearing upon the question of the wilful corrupt perjury charged against him, and the reasonable doubt of his guilt.
The ninth assignment of error is based on' the refusal of the court to grant a motion in arrest of judgment. The- grounds of the motion in arrest are, that, first, the verdict was illegal,- and, second, that -the defendant is not legally charged with the commission of any crime, and principally under the last, that the necessary elements of perjury are not set out with sufficient certainty and fullness to place the defendant on notice of the crime sought to be charged. It .is argued that the information does not set out any facts to show .that defendant at the time of taking the oath upon which the -perjury is predicated had then any opinion or was then sensible of any bias or prejudice either for or against Bradford. We do not think any of "these objections are sound, and that the court did not err in overruling this motion.
The* tenth assignment of error is based on the ruling of the court denying the motion for a new trial. Among the grounds of this motion are these: That the verdict is contrary to the evidence, is contrary to law, and contrary to the law and evidence.
On the trial the State produced evidence directly tending to prove all the material allegations of the informa
Tke'jury were left to infer the existence of this alleged bias and prejudice from his previous statements made to F. D. Miller and T. H. Smith.
The defendant introduced on his own behalf the State witness, F. D. Miller, who testified as follows: “I am a practicing physician in Jacksonville, and have been for many years. I know the defendant, am well acquainted with him. Have had frequent occasion to see and observe him. I have attended and prescribed for him professionally on many occasions. He lives on my own place in the country. I .see him often. He is very peculiar, and at times does a great many strange and odd things. He is very boisterous and garrulous, frequently flies into fits of anger and passion without cause. I have often see him in these outburts of passion when there was no cause for them, when he acted like a crazy man. I remember once that he wanted to kill all the chickens because some rooster pecked a hen. I have seen him fly off and threaten to do great harm, and many outrageous things without cause. He has many symptoms of a man of deranged mind. I certainly do not think that he is mentally sound or responsible. I look upon him as a man of unsound mental faculties. That is my opinion.”
The bill of exceptions then shows that the defendant produced Dr. Stinson and five other witnesses and offered to prove by them certain facts beaxdng very materially upon the question of the mental condition of the defendant, but the bill of exceptions does not show whether this testimony was permitted to go to the jury,
T. EL Smith, who testified for the State that Leaptrot had said if taken as a juror in the Bradford case be would hang that man, also said that he did not pay much attention to his talk; that it was openly and boldly stated; that it did not impress him as being serious; that he was talking in a loud, garrulous sort of way.
The State introduced no evidence in rebuttal of the testimony of Dr. Miller as to the unsoundness of mind of the defendant. Neither Dr. Miller nor Mr. Smith could fix the time when Leaptrot made the statements with accuracy. Smith was not certain whether it was before the first or last trial of Bradford. Dr. Miller said the statement was made “a month” or such a matter before the last trial of the Bradford case. The time of another conversation he did not give at all.
In view of the fact that Dr. Miller, the State witness, testified that Leaptrot was of unsound mental faculties, calling him an old man; that this testimony was not rebutted in any way whatever; that the alleged statements cf Leaptrot were made at some indefinite time before the time when he was taken as a juror upon the trial of the Bradford case; that there was no direct evidence of any
The judgment of the court below is reversed and a new trial awarded.