74 Fla. 269 | Fla. | 1917
The plaintiff in error, V. A. Morasso, was convicted in the Court of Record of Escambia County at the May Term thereof 1917, upon an information which charged that he did then and there engage in and carry on the business of a dealer in liquors without first having procured the license required by law and that the defendant had theretofore been convicted in said Court of Record of Escambia County of a similar offense, which judgment he seeks to have reversed here upon writ of error.
Briefly stated, the testimony on behalf of the State tends to prove that -the Deputy Sheriff seized in the house of one Mrs. Gilchrist at Flomaton, in Escambia County on 2nd. May, 1917, a trunk full of pints and half pints of whiskey and a suit case with several pints of whiskey
The testimony of one Claud McCurdy for the defendant was to the effect that he purchased the liquors seized on the premises of Mrs. Gilchrist with money furnished by a number of people who intended to have and use the liquor at a picnic, and that the liquors were not purchased by him for sale; that he and his brother and the defendant carried the liquor to Mrs. Gilchrist’s.
The defendant then produced one Lige McCurdy as a witness, who was duly sworn and placed upon the witness stand, whereupon the County Attorney prosecuting for the State objected to the testimony of McCurdy upon any point, or as to any fact, upon the ground that the rule had been granted by the court excluding witnesses from the court room, and that the witness McCurdy had been present in the court room during the examination of the State witnesses, which objection was sustained by the court and to which ruling defendant excepted;
The County Judge of Escambia County testified for defendant that in a preliminary hearing before him in January, 1917, wherein the defendant was being prosecuted for the sale of liquor without license, that Albert Johnson was produced as a witness, and then defendant’s counsel asked the following question: “At the preliminary hearing given by you of this witness in January, 1917, did the State witness Albert Johnson testify that he had bought liquor in any quantity from this defendant in Escambia county, Florida?” to which question the
Then tbe defendant moved the court to strike all testimony with reference to liquor found at the house of Mrs. Gilchrist, and also to remove that liquor from tbe court room, because the liquor did not belong to tbe defendant and was not held by him for sale, and was not an unusually large quantity of liquor in possession of an individual as contemplated by the statute, same having in no way been connected with defendant, wbicb said motion was denied, to wbicb ruling defendant excepted.
There are ten assignments of error, only seven of which are argued by plaintiff in error, and they will be considered in tbe order presented.
The second assignment of error is that “The court erred in refusing to permit the witness Henry Bellinger to answer the following question propounded by defendant's counsel: Was this defendant discharged by you at his preliminary hearing in January, 1917, of the charge
The -third assignment of error is that “The court erred in refusing to permit the witness Henry Bellinger to answer the following question propounded by defendant’s counsel: 'At the preliminary hearing given by you to the defendant in January, 1917, did the State’s witness, Albert Johnson, testify that'he had bought liquor in any quantity from this defendant in Escambia County, Florida?’ ”
The witness Albert Johnson had testified that he was not a witness at the preliminary hearing before Judge Bellinger in January, 1917, wherein defendant Morasso was charged with selling- whiskey, and Judge Bellinger in his direct testimony for defendant contradicted Johnson by testifying that Johnson was produced as a witness at said preliminary, trial. The sole purpose of the question set forth above was to discredit the witness Johnson by proving that he gave certain testimony in the preliminary hearing. There was no predicate laid to impeach him and in order to impeach a witness by. proving previous statements' or acts inconsistent with his testimony his attention must first be called on cross-examination to such statements or acts. Horne v.
The fourth and fifth assignments of error — (4) “That the court erred in refusing to strike upon motion of defendant’s counsel all of the testimony offered by the State of the finding of large quantities of liquor at places not in the defendant’s possession.” (5) “That the court erred in refusing motion of counsel for defendant to strike testimony offered by the State as to the finding intoxicating liquor at the house of Mrs. Gilchrist’s.”
The first of these two assignments is too general, but is not applicable in any event, because the court had stricken all testimony as to liquors other than that seized at the house of Mrs. Gilchrist, and had the same removed from the court room.
In view of the testimony which tends to prove an admission by defendant that he was the purchaser and owner of the liquor, other admissions by defendant and his connection with the liquor, there is no merit in the fifth assignment of error.
The sixth and seventh assignments .of error are based on the refusal of the court to give two. special charges requested by defendant. The requested charges are not set out in this opinion because they cannot be considered by this court for the reason that the record does not exhibit, the entire charge given to the jury, and the appellate court cannot say that the trial court erred in refusing to give a specific charge requested by defendant. Weaver v. State, 58 Fla. 135, 50. South. Rep. 539; Finlayson v. State, 46 Fla. 81, 35 South. Rep. 203.
The judgment is affirmed.