43 Fla. 500 | Fla. | 1901
Nicholas P. Myers, otherwise called Nick Myers, was convicted of murder in the third degree, and Robinson Myers was convicted as an accessory before the fact, upon their joint trial in .the Circuit Court of Marion county, held in October, 1900, and from the sentences imposed sued out this writ of error.
It appears from the bill of exceptions that a jury consisting of twelve named persons came, and each of said persons was ordered by the judge sworn in chief as tendered by the State and accepted by the defendants, to which defendants then and there objected and gave notice of their right to challenge any of said jurors so sworn, if
The deceased was last seen alive about 4 o’clock p. m. December 22, 1897, engaged in work near his house. He failed to appear at supper time, and during that night and the next day parties were searching the neighborhood for him. Following certain tracks leading from a place near where was last seen, members of the searching parties came upon a fire that had evidently been made of logs and which was nearly burned out, and,in this fire was a frame of bones, and several articles which it was claimed deceased had with him at the time of his disappearance. One witness, J. W. Elkins, was asked to describe what he found at the fire, and replied: “I took a stick and raked out fragments of bones, some of the pieces I thought were skull bones, one piece was the jaw bone, and finger bones I took them to be.” Immediately following this answer of the witness in the bill of exceptions is the statement of an exception as follows: “Hereupon the defendants’ counsel objects to witness testifying to matters of opinion, and' the said judge opinion and decis
The fourth assignment of error complains that the court erred in permitting the witness A. J. Smith ff> testify that in his opinion certain burned fiesh found in or near the fire before mentioned was the heart and lungs of a human being. After a careful examination of the bill of exceptions we are unable to find that any objection was raised or any exception taken to- any ruling of the court with reference to the testimony of the witness named, and this assignment of error is therefore without an objection and exception to support it.
The fifth, sixth, seventh and eighth assignments of error are based upon exceptions taken to' rulings of the court overruling objections to questions propounded to the State’s witness George Drawdy. The ground of these objections was that the questions were leading. The trial judge in his discretion may permit leading questions to be propounded to witnesses, and under our decisions the exercise of this discretion is not reviewable in this court upon writ of error. Coker and Scheiffer v. Hayes, 16 Fla. 368; Southern Express Co. v. Van Meter, 17 Fla. 783; 35 Am. Rep. 107.
The State, against the objections and exceptions of defendants, was- permitted on cross-examination ®f Andrew J. Higginbotham, a witness for defendants, to inquire as to whether a conversation occurred between the witness and one J. H. Wiley at a certain time, and as to what was said in that conversation, and as to whether certain ■specified remarks were not made 'by the witness in that conversation. The witness admitted the conversation, ■could not remember anything that was said by either party thereto, but denied positively making the remarks (inquired >'about. The Staie Attorney announced that the purpose of the inquiry was to test the memory of the witness and also to lay the predicate for his impeachment. The defendants’ objections were based upon the ground that the examination upon that subject was not in pursuit of the direct examination, and was immaterial and irrelevant. The State did not attempt to- impeach the witness by showing what the conversation was, or that the witness mlade the remarks which he denied making. Under these circumstances, though the court may have erred in its rulings upon objections to the questions propounded, nothing harmful to the defendants, or affecting the credit of the witness was elicited, and therefore assignments of error numbers eleventh'and thirteenth complaining of such rulings are not sufficient to cause reversal of the judgment.
Tjie fifteenth assignment 'of error is to the effect that the court erred in permitting a certain question therein stated to be propounded to the witness Aindrew J. Higginbotham. The bill of exception shows that this question was objected to by defendants, and that the objection was sustained. This assignment of error therefore finds no basis of support in the record.
The defendants’ witness, Andrew J. Higginbotham, on his direct examination, testified in substance that he knew the defendants, and one T. J. McKinnon, a State witness; that he had been subpoenaed as a witness in the case by the State (though he had not been examined in behalf of the State) ; that- he was at the house of N. P. Myers on December 22, 1897, the day of the alleged disappearance of the deceased; that he went there with T. J. McKinnon in the afternoon of that day; that he did not remain at Myers’ very long — did not get off his horse; that he left Myers’ about sundown, went about two and a half miles to- his home and reached there about dusk. He also* testified that he had been indicted in the same case, and was interrogated as to certain conduct on the part of and threats made against him by one Hunnicut, a detective who-, it is claimed, was engaged by the deceased’s wife to- investigate the alleged murder of her husband, not necessary to be specially noticed in this connection with the assignments of error
The eighteenth assignment of error is expressly abandoned.
Defendants offered to prove by the witness Higginbotham- that “D. H. Hunnicut was a detective employed to work up this case, and attempted to procure false evidence from the witness by threats of criminal prosecution
The twenty-first assignment of error is based upon the ruling excluding a question propounded by defendant upon cross-examination to George W. Drawdy, a witness for the State, inquiring whether the witness at a designated time and place did not say to defendants’ attorney he was satisfied that N. P. Myers was not and could not have been the party that murdered Arms, and state his reasons therefor. The ruling was duly excepted to. There was no eye witness to the homicide, but the evidence consisted of circumstances testified to' and of certain admissions or declarations made by defendant N. P. Myers before and after the alleged homicide. The witness Drawdy testified to certain declarations of N. P. Myers prior to the disappearance of Arms, tending to show ill-will against the deceased and an intention to run him away from the country or otherwise rid the community of him, and to declarations on his part after the disappearance of Arms, to the effect that if Arms was killed he did not do it, and did not know who did, but that it was the best thing that could happen; that he was no. fool and “if all keep our mouths shut this thing’s done now, and will never come to light.” As a general rule the opinion of a witness as to the 'guilt or innocence of an accused person is not admissible in evidence, and therefore a witness
The twenty-second and twenty-third assignments of error are expressly abandoned.
' The defendants excepted to. the following instruction given by the court: “The evidence of an accomplice should be. received by the jury with great caution, but if the testimony carries conviction, and the jury, after careful consideration of all the evidence, are convinced of its truth, they should give to it the same effect as would be allowed to that of a witness who is in no respect implicated in the offense.” This exception is made the basis for the twenty-fourth assignment of error. The objections urged to this instruction are two: first, that it is broad enough to include the testimony of. accomplice witnesses for the defendants, and therefore disparages their testimony; second, that it omits to inform the jury that such testimony should not be relied upon unless the jury art convinced of its truth beyond a reasonable doubt. As to the first objection, it is sufficient) to say that no witnesses were sworn on behalf of defendants that can be claimed to have been accomplices, in the crime. In the brief it is stated that Mack Jameson and Andrew J. Higginbotham were .such. Upon examination of the bill of exceptions
Instruction eighteen given by the court is as follows: “18. If the act of one conspirator, proceeding" according to the common intent, terminates in a criminal result, though not the particular result meant, all the conspirators are liable. That is, a person may be guilty of a wrong he did not specifically intend, if it came naturally or even accidentally through some other specific or general evil
The defendants excepted to the nineteenth instruction given by the court, and this exception constitutes the basis of the twenty-sixth assignment of error. The
The twenty-seventh, twenty-eighth and twenty-ninth assignments of error are expressly abandoned.
The thirtieth assignment of error complains of the twenty-sixth instruction given by the court, which was duly excepted to and is as follows: “This case has occa
The thirty-first and thirty-second assignments of error are based upon the refusal to give instructions numbers two and three requested by defendants. These instructions were properly refused because the court had already given in its instruction number nineteen the substance of these refused instructions.
The thirty-third and thirty-fourth assignments of error are predicated upon the court’s refusal tc* give the defendants’ fifth and sixth instructions requested, to which rulings exceptions were duly taken. These instruc
The thirty-fifth and thirty-sixth assignments of error are expressly abandoned.
The thirty-seventh assignment of error is based upon the court’s refusal to give the thirteenth instruction requested by defendants, to which "refusal an exception was duly taken. This instruction is as follows: “If the guilt of the prisoner is to be established by a chain of circumtances, and the jurors have a reasonable doubt in regard to any one of them, that one ought not to have any influence in making up their verdict. In order to •warrant a conviction of crime on circumstantial evidence, each fact necessary to a conclusion of the guilt of the prisoner must be proved by competent evidence beyond a
The thirty-eigth and thirty-ninth assignments of ■error are expressly abandoned.
The fortieth assignment of error is predicated upon the court’s refusal to give the seventeenth instruction requested by defendants, the refusal to give which ,was duly excepted to. The refused instruction is as. follows: “The fact that the alleged crime may have been committed in a brutal, cruel, and revolting manner, that foul
The forty-first, forty-third and forty-fourth assignments of error are expressly abandoned.
The forty-second assignment of error is based upon the refusal of defendants’ nineteenth requested instruction, which is as follows: “The court farther instructs you that it does not devolve upon the defendants to account for or to show the whereabouts of-the alleged deceased I. O. Arms.” The court’s instructions to the jury distinctly told them that the burden of proof was
The other assignments of error not expressly abandoned we do not deem it necessary to consider in view of the conclusion reached.
The judgments of conviction, are reversed and new trials granted.