49 Fla. 7 | Fla. | 1905
The plaintiff in error was indicted for the homicide of J. A. Brand and upon conviction of murder in the second degree took this writ of error. A special venire of forty names were drawn from the box by the judge. The name of Samuel R. Birdsey, Jr., was drawn from the box but it was not placed on the list constituting the special venire. A motion was made by the defendant to quash the venire for this reason. .The'order of the judge denying this motion states that Samuel R. Birdsey, Jr., who is a brother-in-law of Mr. R. R. Bullock, defendants counsel, lived in the county until he moved to'the State of Georgia, about a year or more previous to the trial and has remained there since; that when the name was drawn the fact of the removal was spoken of, and the judge remarked to Mr. R. B. Bullock that it was useless to place the name of S. R. Birdsey, Jr., on the venire, to which Mr. R. B. Bullock assented or made no objection. It was not harmful error to omit the name of Samuel R. Birdsey, Jr., from the special venire under these circumstances.
F. M. Townsend, 'a member, of the regular venire on vow dire examination stated that he is not acquainted with the defendant and did not know the deceased; that he had heard of the facts and circumstances of the alleged homicide from common rumor and read an account of it in the Ocala Banner. He was then asked: “Q. From what you heard and read did you form or express any opinion as to the guilt or innocence of the defendant?” Ans. “T did.” Q. “Have you that opinion now?” Ans. “I have.” Q. “Is that opinion so. fixecj in your mind that it would not readily yield to the sworn evidence?” Ans. “I think not.” Townsend was tendered as a juror and on cross-examination answered questions as follows: Q. “Mr.
P. T. Randall, a witness for the State, testified as. to a difficulty between the defendant and the deceased stating that he heard a pistol fire twice; that deceased “staggered forward and when he fell I saw Mr. Marlow go out of the front door bareheaded and leave, and Mr. Brand (the deceased) then said: ‘don’t say I wrote the note, I did not do it.’ ” The defendant objected to the statement as being made by the deceased in the absence of the defendant and not in his hearing. Under the circumstances of this case the statement of the deceased above quoted was
On cross-examination this witness testified that he had sent to the State Attorney the names of witnesses in this case and that he “helped Mr. Johnson (the father-in-law of Brand the deceased) as other citizens” by subscribing to the fund for the assistant attorney to prosecute the defendant. When asked how much did he subscribe and pay towards the fee to secure an attorney to prosecute Mr. Marlow he answered: “I gave Mr. Johnson ten dollars, also assisted by deducting twenty-five dollars from Mrs. Brand’s account.” On re-direct examination the witness waS asked if the ten dollars he contributed towards the employment of assistant counsel to aid in the prosecution of this case was donated by reason of any ill-will, animosity or malice towards the defendant and what was his reason for contributing the amount. Tjhe witness answered: “It .was not with any ill-feeling; as the other neighbors helped Mr. Johnson, I helped him also.” The defendant objected to the question before it was answered on the grounds that it was irrelevant and immaterial and that it sought the opinion of the witness; and after the witness answered the defendant moved to strike the portion of the answer, that “US' the other neighbors helped Mr. Johnson, I helped him also,” because it is not responsive to the question and is an expression of the opinion of the witness. The rulings of the court in permitting the question to be answered and in refusing to strike the portion of the answer as stated above were excepted to and errors are assigned thereon. The question called for an explanation of matters brought out on cross-examination and there was no error in permitting
An assignment of error is based on a question asked the witness Randall on his. re-direct examination as to whether he and the other neighbors knew of the condition and circumstances of Mrs. Brand. This question was not answered so it is unnecessary to consider it.
The defendant objected to a question asked in the redirect examination as to the financial condition of Mrs. Brand, the widow of the deceased, and Mr. Johnson, her father, at the time of or immediately after the homicide, on the grounds that it was irrelevant, immaterial, seeks an opinion and leading. The objections were overruled and the defendant excepted. The answer was that they were in very poor circumstances. The ruling of the court was not erroneous on the grounds assigned as the testimony tended to explain the contributions shown in the cross-examination 'to have been made by the witness to the ^persons mentioned in the question.
Errors are assigned on rulings of the court sustaining objections of the State Attorney to questions asked a State witness on cross-examination as to the correctness and meaning of a diagram shown to the witness and as to finding a knife under or about the deceased. The questions were objected to as being immaterial and irrelevant and not proper in cross-examination. The diagram had not been put in evidence, and it was not referred to in the direct examination of the witness. The witness was afterwards introduced on behalf of defendant and testified fully in regard to finding the knife. The rulings were not erroneous under these circumstances:
Error is assigned on charge numbered 14, which is as follows: “The question as to who was the aggressor is one
Error is assigned respecting the 16th instruction given by the court. This instruction was expressly confined to murder in the third degree. The jury rejected entirely the theory of murder in the third degree, which they were fully justified in doing by the testimony, and it is not apparent that the defendant was injured in any way by the charge. There was nothing in it which could influence
Charge numbered 16 1-2 assigned as error is as follows: “If you find from the evidence in this case, beyond a reasonable doubt, that the defendant A. D. Marlow, with malice and hatred in his heart towards Brand, sought an interview with Brand and accused him of writing the damaging article about A. D. Marlow, and used offensive and opprobrious language towards Brand, or did any act or thing for the purpose and with intent of provoking a difficulty with Brand, so as to induce Brand to assault him with the premeditated design that if the said Brand did assault him to shoot and kill the said Brand, then Marlow can not avail himself of the plea of self-defense and you will find him guilty as charged.” This charge is not amenable to the criticism that it invades the province of the jury by stating what constituted the bringing on of the difficulty. Taken in connection with other charges given it is not reversible error. Bassett v. State, supra.
The seventeenth charge of the court is: “If you find from the evidence in this case that the defendant was the aggressor in the personal difficulty that resulted in the death of the deceased, and that the killing was unlawful and not justifiable or excusable homicide nor murder in
The verdict is fully sustained by the evidence.
The judgment is affirmed.