40 Fla. 509 | Fla. | 1898
At a term of the Criminal Court of Record of Or
I. The defendants moved for a severance for reasons based upon various matters of fact not appearing of record. No proof of the truth of these matters of fact was offered, and although the motion recites that the State attorney had admitted in the presence of the court that he expected to introduce upon the trial certain evidence, which the defendant claimed would give them the right of severance, the record before us does not show such admission, and we can not take the statements of the motion as evidence of the facts therein recited. Garner v. State, 31 Fla. 170, 12 South. Rep. 638; Lambright v. State, 34 Fla. 564, 16 South. Rep. 582. As the matter of severance rests in the sound discretion of the trial court (Ballard v. State, 31 Fla. 266, 12 South. Rep. 865), we can not interfere with a ruling denying same in the absence of evidence showing the truth of matters proposed as grounds therefor.
II. Plaintiffs in error propounded to proposed jurors the following questions: “1st. Do you understand the meaning of a circumstancial evidence case? 2nd. If A owns a barn worth $1,000, its contents worth $500, the barn and the contents are insured for $3,000, A is seen to entpr the building and leave it, and shortly afterwards the barn is burned. He is charged with burning the house. Would you call that a case of circumstantial evidence?” The court correctly refused to permit these questions to be answered, for the answers, whether affirmative or negative, could have had no bearing upon the qualifications of the proposed jurors. The
III. The evidence against the defendants was largely circumstantial. There was no positive proof that the Kedney dwelling was ever broken, but the evidence tended to show that the building was occupied by its owner as a winter, residence until about June 15, 1897, when he departed for his home in Minnesota, leaving the house unoccupied, but in the care of neighbors with whom the keys were left; that the goods alleged to have been stolen at the time of the alleged breaking, consisting of household furniture, were left in the second story of the building by the owner; that those in charge of the building visited it at various times up to September 26th, observing no evidences of a breaking of the building or the loss of any of the furniture, and it seems not to have been suspected that the house had been broken, or the goods stolen until after the destruction of the house by fire on September 26. There was also evidence tending to show that defendant Roberson about June 12th made inquiries of one Albert Carey as
IV. The witness John F. Gordon testified on be
V. The fifth assignment of error, relating to the testimony of Albert Carey as to a conversation with Roberson in, June, 1897, referred to in a preceding paragraph, not being argued, is treated as abandoned.
VI. On cross-examination defendant’s counsel propounded the following questions to Albert Carey, a State witness: “Were you not convicted in this court
VII. There was evidence tending to show that on the night of September 17th, defendant Edenfield together with another man and a woman moved into the house where Edenfield and his sister were living at the time the goods alleged to have been stolen were found therein. There was also evidence tending to show that subsequent to September 17th Roberson lived in this house with Eden-field and his sister Mamie, and that previous to his re
VIII. The eighth assignment of error complains that the witness F. S. Weeks was permitted to testify to facts showing adultery on the part of Roberson and Mamie Edenfield. We find no such evidence in the
IX. The State introduced G. B. Lawson who testified that he had known defendant Roberson by sight for five years; that on the evening of September 26th, shortly after the officers had found the goods alleged to have been stolen, he was near the house where the goods were found; that he saw a man in the weeds near the house; that he could not swear who it was, but in his opinion it was Roberson. Defendants objected to this last statement as being merely matter of opinion. The court correctly overruled the objection. The opinion of a witness as to the identity of a person seen by him is admissible in all cases where the witness has a previous personal acquaintance with or knowledge of such person, and bases his opinion upon such acquaintance or knowledge. Lawson on Expert Evidence, R 45, P. 273; 1 Greenleaf on Evidence, §440; Wharton’s Crim. Ev., §459.
X. J. S. Brocksmith, a State witness, testified that he and Carter and Gordon searched Edenfield’s house on September 26th, and there found the Kedney goods alleged to have been stolen in possssion of Eden-field and his sister Mamie. On cross-examination the witness was asked by defendants, “did you search any other houses in that section?” This question was overruled the court remarking to defendants’ counsel, “you must confine yourself to these goods.” The court properly excluded the question stated. Counsel stated to the court below, and argue in this court, that the question was relevant, not because it would secure evidence that any of the Kedney goods were found elsewhere, but because it would secure evidence going to show other burglaries in that .section and the finding of other goods in other people’s houses and other arrests made. This evidence could have no bearing upon the
XI. The sixteenth assignment of error complains that “the court erred in permitting witness C. R. Carter to testify as to examination and identification of shoes of defendant Roberson and finding of said shoes, said evidence being to show said defendant was suspected of other crimes than the one for which he was on trial.” The shoes so identified by Carter were found in Eden-field’s house at the time of the search which resulted in finding the Kedney goods. The State’s evidence tended to prove that Roberson was living in this house with the Edenfields at the time the goods were found, and that Roberson was a joint possessor of the goods with the Edenfields. The finding in the house of articles of wearing apparel belonging to Roberson was a circumstance tending to prove that he resided there, and was therefore admissible.
XII. The court instructed the jury that “in cases of circumstantial evidence it is not necessary that the proof shall be conclusive, it is sufficient if the jury believe from all the facts and circumstances of the case that the accused is guilty, and that they have no reasonable doubt in their minds of this fact. If the jury think that the facts in this case are all consistent with the supposition that the prisoners are guilty, and can not reconcile the circumstances produced in evidence with any other supposition than that of guilt, it is their duty to find them guilty. All that can be required is not absolute and positive proof, but such proof as convinces them that the crime has been made out against the accused beyond a reasonable doubt.” The defendants insist that this instruction was erroneous because it failed to embrace the idea that there must be such a zvell connected and unbroken chain of circumstances as to exclude every other reasonable hypothesis but that of the guilt of the
XIII. The court instructed the jury as follows: “Where property taken by breaking and entering with intent to commit a felony is found in the exclusive possession of the defendant being tried on the charge, recently after the breaking and entering and the theft of the goods so found, when standing alone, is sufficient to cast upon him or them the burden of explanation how he came to them, or of giving some explanation, and if he fail to do so, to warrant the jury of convicting him of the crime charged. The explanation given must not only be reasonable; it must be credible or enough so to raise a reasonable doubt in the minds of the jury who are the judges of the reasonableness and probability as well as credibility;” and at the request of the State: “The unexplained possession of property shown to have been taken by burglary or robbery is sufficient to warrant a conviction of these crimes, and any explanation of
XIV. The defendants’ eighth requested instruction was properly refused, because the court had already by its second instruction given the jury in charge the substance of the refused instruction.
XV. The defendants requested the court to charge the jury that “in a case like this, where the parties are being tried together for one and the same offense, the fact that one of the defendants has been accused of committing other violations of the law, separate and distinct from the offense of which they are on trial is no evidence that can be considered by the jury as bearing upon the co-defendant, or the defendant himself who is charged with such other violation, and therefore the court instructs the jury that any evidence or insinuation of the commission of other offenses than the one for which the defendants are on trial is absolutely no proof, arid forms no circumstance that can be considered by the jury in this case.” We think the court correctly refused this charge. It had admitted evidence tending to show that subsequent to the alleged breaking Roberson had set fire to the building alleged to have been broken, for the purpose of destroying evidence of his alleged
XVI. At the conclusion of the charge the court remarked to the jury: “Retire, gentlemen, and bring in a verdict.” The defendants excepted to this remark, and insist that it was erroneous. We see no impropriety in the language used, and rule that the objections thereto are without merit.
XVII. The question involved in the motion to arrest judgment will in all probability not arise upon another trial, and for that reason we do not consider them.
The judgment of the court below is reversed, and a new trial granted.