83 Fla. 555 | Fla. | 1922
Lead Opinion
-The plaintiff in error Lewis Mercer, was indicted' for the crime of incest alleged to have been committed upon his daughter during the month of April, A. D. 1921. The testimony of the daughter with whom the illicit intercourse was alleged to have been committed was to the affect that the defendant began such conduct about two weeks after the death of his wife, and by cruelty and intimidation subjected her body to his unlawful desires many times through a period of about a year, or longer. There was a verdict of guilt by the jury and judgment and
According to the certificate of the clerk which is attached to the record, the cause is brought to this court under special Rule 3 for the “making- up of transcripts by the clerk in civil causes. ’1 The special rule was adopted in 1905 and provision was made by Special Rule 6 that Special Rules 1, 2 and 3 may be used in the preparation of transcripts of records and bills of exceptions in criminal and habeas corpus cases. These new rules require that a Certificate by the clerk of the court shall be attached to the transcript that it contains a correct “transcript of the record of the judgment” in the case, and a true and correct recital and copy of “all such papers and proceedings in said cause as appears upon the records and files of my (his) office, that have been directed to be included in said transcript by the written demands of the said parties.” The certificate of the clerk required by the old rule contained a statement that the pages to which the certificate was attached constituted “a true copy of all of the proceedings, and a correct transcript of the record of the judgvment in the case” as appeared upon the files and records of the office.
This court has held that a transcript of the record prepared under the old rule in a criminal case in which the defendant was charged with a felony, must show that the defendant was arraigned and pleaded to the indictment and was personally present at every stage of his trial or the judgment would be reversed. See Warrace v. State, 27 Fla. 362, 8 South. Rep. 748; Lovett v. State, 29 Fla. 356, 11 South Rep. 172; Blocker v. State, 60 Fla. 4, 53 South. Rep. 715.
If the transcript of the record had been made up under the old rule, this judgment would have to be reversed because the record proper as distinguished from the bill of exceptions does not show that the defendant was arraigned and pleaded to the indictment. The transcript in this case however, appears from the form of the clerk’s (certificate to have been made up under the new rules, which were also ignored in some particulars. The new rules re
The bill of exceptions contains no reference to an assignment of errors, and seems to have been made up according to the form prescribed by the old rules with some modifications of requirements prescribed by the new.
■ In the case of Albritton v. State, 54 Fla. 6, 44 South. Rep. 745, this court speaking through Mr. Justice Whitfield said as appears by the first headnote, that the two methods prescribed by the old and new rules for making up and authenticating bills of exceptions and transcripts; of records should not be confused or blended. And Mr. Chief Justice Shackleford speaking for the Court in the case of Clinton v. State, 53 Fla. 98, 43 South. Rep. 312, said the same thing. In each case the transcript of the record was so made up that the observation seemed appropriate. In both cases however, the point was considered; in one case the judgment of the lower court was reversed, and in the other it was affirmed.
The bit of advice given in the two eases seems to have been overlooked in the preparation of the transcript in this case, but as it may be done with impunity seemingly we will consider the questions which are actually presented.
In the first place as the transcript of the record appears to .have been made up under the new rules we refer to the directions given to the clerk for making up the transcript to ascertain if the plaintiff in error purposely omitted to
The first assignment of error is that the court erred in not permitting the defendant to withdraw his plea of not guilty and interpose a plea in abatement and motion to quash the indictment. The bill of exceptions shows that at a special term of the court held August 23, 1921, the indictment was returned and the defendant was asked by the court if he had an attorney? He replied that he had not; that he was able to employ counsel but had not done so because he thought'that he did not need counsel that he was thereupon arraigned and pleaded not guilty. That at the regular October Term, he asked through his counsel, permission to withdraw his plea “because it was entered unadvisedly before he had employed an attorney for his defense, ’ ■ and because he desired to file a plea in abatement and a motion to quash the indictment. The court refused to -permit the plea to be withdrawn, to which ruling the defendant excepted. The plea in abatement was not ten
The indictment sufficiently charges the offense of incest under our statute. It charges that on a day certain the defendant in the county of Hardee and State of Florida “did have sexual intercourse with Fannie Mercer, that the said Fannie Mercer was then and there the own daughter of said Lewis Mercer and the said Lewis Mercer was then and there the own father of the said Fannie Mercer.” Sec. 5414 Rev. Gen. Stats. 1920; Brown v. State, 42 Fla. 184, 27 South, Rep. 869; McCaskill v. State, 55 Fla. 117, 45 South. Rep. 843. It is in the discretion of the court to allow a plea of not guilty to be withdrawn in order to plead in abatement. See Savage v. State, 18 Fla. 909; Adams v. State, 28 Fla. 511, 10 South. Rep. 106; Knight v. State, 44 Fla. 94, 32 South. Rep. 110. A plea of not guilty is a waiver of the right to plead in abatement in a criminal case. See Hodge v. State 29 Fla. 500, 10 South. Rep. 556.
No abuse of discretion is shown, so the first assignment of error fails.
The second assignment of error is as follows: “The court erred in admitting improper evidence on the part of the State over the objection of the defendant, to-wit, Cross-examination of defendant’s witness, W. D. Henderson. Bill of exceptions, page 21; also Bill of Exceptions page 18 State witness Isabel Henderson.” Assuming that the assignment is definite enough to merit consideration, it attacks two rulings of the court, and under the rule it will be unavailing unless both rulings are erroneous. See Eggart v. State, 40 Fla. 527, 25 South. Rep. 114; Bass v. State, 58 Fla. 1, 50 South. Rep. 531; Williams v. State, 58 Fla. 138, 50 South. Rep. 749; Peeler v. State, 64 Fla.
The next question propounded was not answered after the objection was made, but was reshaped, to which there was no objection. There was no error however, in the question last propounded. The witness was on cross-examination. He had testified upon direct examination that he lived at one time with his wife in the same house with defendant and his children, and that he had' never noticed any acts or conduct on the part of defendant that showed any improper relations with his daughter, and that Fannie Mercer was living there at the same time. On cross-examination he was asked if he did not leave the house because his wife had told him that Lewis Mercer had told Fannie to “lay that trouble”, on him. His reply was a question
The third assignment of error is based upon a ruling sustaining an objection made by the State Attorney to a question propounded by defendant’s counsel to the prosecuting witness Fannie Mercer. There was no error in that ruling. Upon direct examination the witness had said that the defendant had committed the act with which he was charged several times. Upon cross-examination the fact was emphasized, and the further fact developed that the first time the defendant committed the offense was after the death of the witness’ mother. The following
It cannot therefore be maintained that the court’s ruling-constituted reversible error even if it be admitted that it was wrong, where the matter sought to be elicited was afterwards testified to by the witness without objection. See Owens v. State, 65 Fla. 483, 62 South. Rep. 651.
The fourth assignment of error is too general to be considered. The assignment is that the court erred in “permitting the State’s Attorney to examine a witness in an improper manner over objections of defendant, to-wit: The cross-examination of Isabel Henderson, a State witness, by the State’s Attorney.” It is not pointed out either in the assignment or in brief, nor does the record disclose in what the impropriety of the examination of the witness consisted. ' Isabelle Henderson was called by the State, her testimony was given, and the defendant’s counsel took her upon cross-examination, during which it was developed that defendant was cruel to his daughter in the matter of
The fifth assignment of error is abandoned.
We have discovered no error in the record, so the judgment is hereby affirmed.
Dissenting Opinion
dissenting:
The offense with which the defendant is charged is a heinous and detestable one. If he is guilty, the penalty imposed upon him, although it is the extreme limit of the law, seems insufficient.
It is, however, a charge easily made, and extremly difficult to disprove. Under the harsh rule laid down by this court that the complaining witness’ story needs no corroboration, it is almost impossible to disprove.
The father positively denied the charge.
The complaining witness testified that her father whipped her- rather severely at times. This he admitted. He says: “I was stern with all my children and I have tried to raise them right as far as I was able and had the ability. ’ ’
Other testimony on this point is as follows:,
Fannie Mercer testified: ‘1Q. And had the care of all these children? A. Yes, sir, I had to take care of all them. Q. And keep house? A. Yes, sir. Q. And look after the getting of the meals? A. Yes, sir. Q And be the general house keeper ?' A. .Yes, sir. Q. Just do all that work around there? A. Yes, sir. Q. And these little fellows yon had to take care of? A. Yes, sir. Q. And your father didn’t appreciate it very much? A. Not much. Q. He punished you severely ? A. Yes, sir. Q. When you was negligent or didn’t do things the way he thought you ought to he would punish you ? A. Yes, sir. Q. Did he strap you? A. I say he did. Q. With a belt sometimes ? A. Yes, sir, and oak switches. Q. ’ And make bruises on you ? A. Yes, sir, he has. Q. He would do that when he thought you didn’t take care of the baby just right or wouldn’t do things just to suit him; he would treat you that way when you didn’t do things to suit him, get meals to suit him or take care of the baby the way he thought you ought to, he would jump on you with a belt or strap and flog you until it would raise bruises over your body? A. Yes, sir. Q. And that didn’t make you feel very affectionate towards him? A. No, ma’am, it didn’t. Q. Then you didn’t want to stay there? A. No, ma’am, I
Mrs. Henderson testified: “Q. Tell us about his treatment of her, A. Well, he whipped her pretty severely and he was pretty strict. He started her to school and he had her stopped on account of my health, and he was strict on her. He whipped her rather hard, and he wouldn’t allow any privilege to go like she wanted to go. She thought she ought to have more privileges and he was careful with her and she thought he was hard on her, and he did whip her severely at times. Q. What would he use ? A. Sometimes he would use his belt and sometimes a strap. He was too hard on her and I think that is mostly the trouble now. Q. Did you ever see any bruises or hurts on her caused by these whippings? A. Yes, sir, I have. Q. What did he whip her for? A. He whipped her several times for being, late on the school grounds and he whipped her several times for neglecting these children and when I would bring her in and show him how she would do. Q. Raised bruises and whelps? A. Yes, sir. Q. Tell us how many in the family, living in the house, at that time. A. There was ten of us. Q. How many rooms had the house ? A. Four room house. Q. All of you lived together; just intermingled there as one family? A. Yes, sir. Q. Fannie’s duties there were, of course, to take care of the children ? A. Yes,, sir, she. had to take care of all of them. I just seen that she did. Q. Who took care of the baby at night ? A. i She
Carmine Mercer testified: “Did he punish her severely ? A. Yes, sir. Q. What would he punish her with? A Leather. Q. Belt strap ? A. Yes, sir. Q. What would he punish her for? A. Sometimes about her work and sometimes about being late at school. Q. Son, you say he whipped her about being late on the road from school and slovening on her work? A. What do you mean by that.? : — she would just lay on the road a good many times and didn’t get her work done.”
This would seem to afford' a motive for the charge this girl brought against her father.
' ' During five months of the period when it is claimed the misconduct was taking place, the defendant’s married sis^ ■ter' and her husband lived in her brother’s home. It was á four room house, and ten persons occupied it. ' There
Another occupant was the girl’s sixteen year old brother, and he and her aunt and her husband, testified that they saw no indication of any wrong doing or misconduct on the part of the father.
The aunt testified that after having lived in the house with them for five months, and not having witnessed anything to indicate any wrongdoing of this character, her neice made this charge against her father.
It is inconceivable that this child’s aunt, who went to live with them “as a mother to the children” would not have taken steps to investigate, and if she had the slightest reason for believing the child’s story, would not have taken steps to rescue her. Any woman who was not a brute or a degenerate would have done this, and there is nothing in the testimony to indicate that the child’s aunt comes within that classification.
Against the father’s postive denial and the corroboration by his married sister and her husband and his sixteen year old son, we have the complaining witness, whose examination in chief with regard to the offense consists of the monosyllables, “Yes, sir” and “No, sir,” in reply to eatagorical questions propounded by the State Attorney. There is not a particle of testimony in relation to the charge, in the words of the complaining witness herself.
This is all there is of it that seeks to describe the offense: “Q. Fannie, before you went down to Doctor Trice’s did your father ever treat you wrong ? A. Yes, sir. Q. Tell these six men here just what your father did; just go on in your own way. What did he do to you, Fannie? — what
Her testimony seems to be that of an imbecile, or' one whose mentality has not developed beyond that of a six year old child, and she seems to belong to the class of deficients who fill psychopathic wards in asylums; the -very
A corroborative detail — in support of my view, that this girl is a mental deficient, is her twice replying “No Ma’am” to questions propounded by Mr. Garrison. It may seem a slight matter, but it is from such slight indicia that the degree of mental development in children, is determined.
A conviction of so grave an offense — one so unusual and so very unnatural, ought not to be affirmed except upon testimony of the clearest and most unequivocal character. I know of no class of cases where “corroboration” is more essential, if justice is to prevail. ‘ If her story is true there must have been, observant to some of the inmates of this small house, corroborative details, to give verisimilitude to this bald and unconvincing charge. On the other hand, if the father is innocent, how can he establish it ? I think the judgment should be reversed on the facts.