31 Fla. 514 | Fla. | 1893
• The plaintiffs in error were jointly indicted in the Circuit Court for Monroe county for the murder of Rudolph W. Raymond—Roten as committing the crime, and Thompson as being present, aiding, counseling and procuring the commission of the same. They were jointly tried upon this indictment and both found guilty óf murder in the first degree, with a recommendation of mercy to the court. They bring* the case before us for review by writ of error.
There is such manifest error in the record as to necessitate a reversal of the judgment in this case.
The deceased, Raymond, resided in 1892, at Chat-ham Rend, Mlonroe county, Florida, and recéived the wounds, from the effects of which he died, near that place. A justice of the peace residing in the city of Key West issued a warrant for the arrest of the deceased on a charge of enticing away an unmarried female for the purpose of prostitution, contrary to the statute in such cases provided, and placed it in the hands of the-sheriff of Monroe county to be executed.
In Post vs. Bird, 28 Fla., 1, 9 South. Rep., 888, it was said that “ where process is good upon its face, :and emanates from a court of competent jurisdiction, the officer who executes it according to its exigency will be protected under it;” and also, “it does not -comport with law or correct policy to permit an executive officer to pass judgment upon a proceeding of a court of competent jurisdiction whose process he is required to execute, and obey it or not as he may judge best.” Where the process is not void on its
Again, the State offered in evidence a written statement purporting to be the dying declaration of the deceased, as to the circumstances of the killing, sworn to some two or three da;y s before his death before a justice of the peace.' This statement was objected to by the defendants on the ground that the deceased was "not certain, at the time it was made, of his death, and that it had not been shown that the statement was his dying declaration. Before the statement was offered in evidence, the justice of the peace before whom it was sworn to was examined as to the circumstances under which the deceased made it, and also as to
It is evident from what has been stated,, that the-question of the admissibility of the statement as a. dying declaration was referred to the jury and was. not decided by the court. This decision was. in com flict with the rule of law on this subject,, as clearly stated in the case of Dixon vs. State, 18 Fla., 636. The first head-note in this case is as follows: “Under,an indictment for homicide, where the prosecutor-seeks to introduce a dying declaration of the deceased!
It is essential to the admissibility of these declarations that they were made under a sense of impending death, and this is a preliminary fact to be proved by •the party offering them. The question is one of law to be decided by the court,' and the accused has the right to have the decision of the court directly upon the point. It is error for the court to avoid the decision and shift the responsibility upon ti¡.e jury. 1 G-reenleaf on Evidence, sec. 160; Donnelly vs. State, 26 N. J. (Law), 463. We do not express any opinion .as to the effect of the evidence in reference to the admissibility of the statement as a dying declaration, further than to say that it was of such a nature as to call for the decision of the Circuit Judge, and the ruling .can not be said to be error without injury.
Another assignment of error is, that the court erred in excluding from the jury the testimony of C. F. Dupont, sheriff of Monroe county, as t-o the information he gave, the defendants regarding the character of the ■deceased. Dupont was the sheriff who delivered the warrant to the defendants, with instructions to arrest
It is contended for the plaintiffs in error that ithe portion of the excluded answer assigned as error, to-wit: the information given by the sheriff to the defendants, regarding the character of the deceased, was material and admissible. The bad character offered to-be shown -in connection with the general rumor in Key West that the deceased had said he would not submit
Conceding here that the testimony as to character is sufficient in itself, such evidence is not admissible unless the foundation is first laid for its- introduction. Garner vs. State, 28 Fla., 113, 9 South. Rep., 835; Garner vs. State, 31 Fla., 170, 12 South. Rep., 638. Subsequent to the proposed testimony of Dupont, the-defendants made statements, but' at the time Dupont’s evidence was proposed, there was no offer on the part, of defendants to show any overt act or hostile demon
There are several exceptions to the ’ charges of the court to the jury, but there is only a partial discussion of these exceptions here. Counsel who have filed a brief for plaintiffs in error say in their .brief “as our associate counsel have submitted a brief upon the grounds relating to the defendants’ rights as officers in the discharge of their duty, as distinguished from the rights they would have had as private citizens, we will pass over the instructions given and refused upon .that question, and will'content ourselves with the dis-mission of one more point,” which is mentioned and discussed. We 'find no brief on file discussing the charges passed over, and in view of this fact, and the further .fact that the case will have to be reversed for the errors already mentioned, we ' will refrain from
For the errors pointed out, the judgment is reversed and a new trial awarded. Ordered accordingly.