Stewart v. StateStewart v. State
Thе defendants in error were indicted in Lafayette County Circuit Court in November, 1908, for the murder of one Henry Chewning on July 18, of that year. Frank Stewart as principal and William Stewart as accessory, were tried and convicted of murder in the second degree and sentence of imprisonment for life was imposed upon each of them. They are here seeking a
It seems that Henry Chewning, the deceased, (otherwise known as Dick Chewning) had entеred a homestead some time before he was killed and had moved from it and induced the defendant Frank Stewart to occupy the house upon the homestead land. It had been reported to Chewning that Frank Stewart would attempt to defeаt him in perfecting his homestead claim, and Chewning had given him notice to vacate the homestead. On the Sunday before the killing Henry Chewning, Charles Hartman, Henry Croft, Fred Thomas and Sam Clark all met at Frank’s house (the homestead) about 10 o’clock in the morning; Henry Chewning had spent the night there. Some of these men testified that they went there as wit-’ nesses for Chewning of a demand he was going to make of Frank Stewart for the possession of the house on the homestead. It seems that they all had some sort of a griеvance against Frank Stewart. He was charged by one with having threatened to burn him out, and by others with having stated that they had been marking hogs which did not belong to them. Beading between the lines it is perfectly certain they were anxious for him to move. He promised Henry Chewning to move from the homestead on the following Friday. He seems to have been a very poor man, owning neither horse nor wagon. He seems to have made some sort of efforts to get a team to move his effects but failed. On Fridаy afternoon he put his goods in one room of the house, locked up the door, left the key where it was usually put, took his wife and children and went to his brother William Stewart’s.
Q. .Did he shoot at that time? A. No, sir. William got between the muzzle of the gun and Dick so close up that— Q. Just describe the course that was taken by these three men from that time on. A. Dick cоmmenced going backwards with William and walked right on around the oak here, and Frank stepped out with the gun in his hand. He lowered the gun, and right where that is, he stepped behind William and walked, so close behind William until he got to where my gun had been lying against one of the oaks here and when he got right there
This witness then goes on to describe the situation of the wives of the Stewarts, their children and his own, on the porch. He then testified as follows: Q. Now you say at the time you were shot William was looking at Dick. A. Yes, sir. This witness then says he was shot in two places while leaning against the post. One shot striking him on the side- of the head and the other penetrating his thigh. He was rendered unconscious for a few moments and when he rеcovered consciousness William Stewart came to him and told him that Frank had shot Dick and killed him, and that Dick’s shooting at Frank had hit the witness twice. William then told the Avitness he had better go in where he could life down on the bed, and witness told him it would not do as he was bloody all over. William helped him up, assisted him into the house and put some linament on his wounds. This witness also states that though he was looking at William he did not see him have a gun; that he did not hear any shot at all from any source — as he became unconsciоus when he Avas shot. He did not see William with any weapon of any sort, though he must undoubtedly have had one. This witness’ testimony occupies more
The first assignment of error questions the ruling of the court in admitting a map or diagram of William Stewart’s house and premises. We have been unable to find the map in the record and we deem it unnecessary to notice this assignment.
Several assignments of error are based on the action of the court in overruling several questions propounded to the State’s witness Sam Clаrk, in which in various forms he was asked in effect whether he was not at Frank Stewart’s house on the Sunday previous to the killing of Henry
In the case of Wallace v. State,
An assignment of error is based on the refusal of the court to permit counsel for the defendants to ask the State’s witness Sam Clark the following question: “Did you not on the 21st day of July, 1908, at your home in Lafayette County, Florida, make an affidavit before T. F. Bryan, as Notary Public, in relation to this homicide in which you stated that on the day of the homicide, when you regained consciousness Frank and William Stewart had both absented themselves?”
The witness had admitted making an affidavit before Mr. Bryan on the 21st day of July, 1908, but it does not appear that he was shown the affidavit or that his attention was called to the statements therein which were contradictory of his statement on the trial. We cannot say thе court erred in its ruling as the affidavit does not appear to have been exhibited to the witness. Simmons v. State,
Frank Stewart, while on the stand as witness, was asked on cross-examination whether on the Sunday following the killing of Chewning he had not made a сertain statement to one Hannibal Locke about the killing. He admitted a conversation with Locke but denied making that statement. On the redirect he was asked by hig own counsel whether he had any talk with Hannibal Locke on the occasion refеrred to, and what that conversation was. The State Attorney objected to this question “unless it comes right along in a line for impeachment here.” The court sustained the objection. Under the circumstances it seems to us that the defendant should havе been allowed to give his own version of the conversation with Locke. We are unable to see the force of the objection.
The last assignment of error is based on the action of the court in overruling the motion for a new trial, wherеin it was contended that the verdict was against the evidence. Our views of the evidence as to William Stewart have already been stated. In view of our rulings upon other matters we think it unnecessary to pass on this assignment as to Frank Stewart. Other assignments are argued but we are of opinion it is not essential that they should be considered by us.
The judgements of the court below as to the plaintiffs in error are reversed, and the case remanded.