69 Fla. 662 | Fla. | 1915
W. C. Tully, Jr., was indicted for the crime of rape upon Willie Cook, a female over the age of ten years, and one A. E. Tully was charged in the same indictment with being an accessory to such crime. Upon trial before a jury W. C. Tully, Jr., ivas convicted of an assault with intent to commit rape and A. E. Tully was acquitted. W. C. Tully, Jr., was sentenced to confinement at hard labor in the State prison for the period of ten years and seeks relief here by writ of error.
The first error assigned is as follows: “The court erred in permitting the witness, Willie Cook, to testify, over the objections of the defendant, as to a conversation between herself and the witness, Lucy Nelson, such conversation not being in the presence of the defendants, or either of them, such conversation being as follows: ‘When Miss Lucy came in and told me, I told her to go and tell her Mother,’ and in refusing to grant the motion of the defendant to strike such testimony.”
We find that Willie Cook was the first witness introduced upon behalf of the State, whereupon the following proceedings took place:
*666 ■ “My name is Willie Cook; I am seventeen years of age. I know a man by tbe name of Will. C. Tully, Jr.; he is the man on trial here. I also know a man by the name of Emory Tully. He is also one of the defendants on trial. Q. Will C. Tully, Jr. is charged with having on the 14th day of August this year, had carnal intercourse with you by force and against your will, and Emory Tully is charged with being present at the time. Just state now, Miss Willie, to the court and to the jury how It took place. Just state all the circumstances connected with it, and talk, Miss Willie, if possible, so that the farther gentleman there can hear you (indicating jury). A. Well, I was visiting Lucy Nelson at the time, and Liicy was up town at work, and she came in at twelve o’clock for dinner. She came in the room where I was and told me — -- Mr. Price: Wait a minute. You need not state any conversation between you and Lucy. Mr. Walker: Never mind what Lucy told you. In order to get at it more directly now I will ask you the question. After she came in, what did you say to Miss Lucy? Mr. Price: I object to that; any conversation between the two, not in the presence of the defendant, is improper. The Court: I do not think the conversation is material. Mr. Walker: If your Honor please, the object of the question is to show why she went out and how it was that they went out to this place, and in order to do that, as a matter of fact, the State will have to show what the witness said to other parties, not what Miss Lucy said to her, but what the witness said to other parties before going out there. The Court: It might be admissible for the purpose of leading up to the subsequent events. Mr. Walker: That was the object of the question. The Court: She can answer. Mr. Price: Your Honor will note an exception. When Miss Lucy came and told me, 1 told her to go and tell her mother.*667 Mr. Price: I move to strike that statement as being irrelevant and immaterial and hearsay, and not binding on the defendant. The Court: Motion is denied. Mr. Price: Your Honor will note an exception.”
As stated above, this was the first testimony offered b.v the State, and we think that it was admissible “for the purpose of leading up to the subsequent events” as was stated by the trial judge, and rendering them intelligible to the jury. What “subsequent events” might be developed by the testimony had not then been disclosed. It will be observed that the witness did not state what Miss Lucy told her or what the witness told Miss Lucy to tell her mother. How this statement of the witness could have been harmful to the defendant we do not see, therefore must hold that this assignment has not been sustained.
The second and third assignments, which are argued together, are as follows:
“Second Assignment of Error.
The court erred in sustaining the objection interposed by the State to the following question propounded by defendant’s counsel to the witness, Willie Cook, namely: ‘On the night before you went out with the two Tulleys, didn’t you and Lucy Nelson ’phone for a car, and have the car meet you, and two men to meet you, in the dark back of the Capitol and go out driving?’ ”
“Third Assignment of Error.
The court erred in sustaining the objection interposed by the State to the following question propounded by the defendant to the witness, Willie Cook, to-wit: ‘Were you*668 and Miss Nelson then on Thursday night, the night this thing, is said to have occurred with Otto Barineau and another party in the cemetery here in town drinking beer and having a good time generally ?’ ”
The two questions to which objections were interposed by the State, the sustaining of which forms the basis for these assignments, were propounded to the prosecuting witness on her cross-examination. We would refer to our discussion in Rice v. State, 35 Fla. 236, 17 South. Rep. 286, 48 Amer. St. Rep. 245, wherein we held as follows: “Upon a trial for rape the character of the prosecutrix for chastity, or the want of it, is competent evidence as bearing upon the probability of her consent to the defendant’s act, but the impeachment of her character in this respect must be confined to evidence of her general reputation, except that she may be interrogated as to her previous intercourse with the defendant, of as to promiscuous intercourse with men, or common prostitution.” As we stated therein, although there is some division in the authorities upon this point, the rule which we therein adopted, is “sanctioned by the preponderance of authority.” See the authorities there cited and also the following: People v. McLean, 71 Mich. 309, 3S N. W. Rep. 917, 15 Amer. St. Rep. 263, and especially the excellent note on page 714 et seq. of 14 L. R. A. (N. S.) where the authorities upon either side of the question will be found fully collected. As we also said in Rice v. State, supra, “Considering the the line of defense adopted by the defendant, no injury could have been done by him by ruling out this testimony. The only purpose for which such testimony was offered was to show a probability of consent on the part of the prosecutrix to the act of the defendant. The defense was not based upon any theory of consent to the act, but
The fourth assingment is as follows: “The Court erred in sustaining the objection interposed by the State to the following question propounded by defendant’s counsel to the witness, Willie Cook, and in not permitting the said witness to answer said question: ‘As a matter of fact, did you, on that evening in which you and Miss Nelson went to take this ride, write a note or send word to some young men here in town who wanted to call on you that you could not go with them that evening^ that you were going to a party ?’ and in refusing to permit the witness to answer the additional question propounded to her, to-wit: ‘As a matter of fact, was there any party to be had that night?’ And the court erred in sustaining the objection to each of said questions severally, and in not permitting the witness to answer each of said questions.” What we have said in treating the second and third assignments also applies to this assignment and it must fail for the like reason. As we held in Fields v. State, 46 Fla. 84, 35 South. Rep. 185, “A witness can not be cross-examined as to any fact which is collateral or irrevelant to the issue merely for the purpose of contradicting him by other evidence if he should deny it, thereby to dis-credit his testimony.”
The fifth assingment is abandoned.
The sixth, seventh and eight assingments are as follows :
“Sixth Assignment of Error.
The Court erred in excluding, upon its own motion, the question propounded to the witness, Willie Cook, by the defendant’s counsel, and in refusing to permit her*671 to answer the same, as follows, to-wit: ‘Why didn’t you holler more than that, did Bill Tully have his hands around your mouth, too ?’ ”
“Seventh Assingment of Error.
The Com! erred in excluding the following question propounded by the defendant to the witness, Willie Cook, upon its own motion, as follows: ‘Don’t you knotv that the mere placing of his hands on, or the mere squeezing of your thigh would not prevent your hollering?’ and in stating in the presence of the jury, in refnsng to permit the witness to answer the question, as follows: ‘She need not answer that question, it is entirely improper and irrevelant; you cannot go into her mental processes that way, Mr. Price. She stated that she did not do it; she stated that he had his hand on her thigh, and she says that is the reason.’ ”
“Eight Assingment of Error.
The Court erred in sustaining the objection interposed by the State to the following question propounded to the witness, Willie Cook, as follows: ‘Why didn’t you raise some kind of an alarm as you went along the street ?’ ”
The prosecuting witness had testified that she knew that the defendant was a married man, but had accepted an invitation which came from him through her friend, Lucy Nelson, whom she was visiting, to take an automobile ride on the night in question with the defendant and Lucv Nelson upon the understanding that the defendant’s wife was also to accompany them, that the defendant came jn his car to the house where the two girls were staying,
, We have copied this portion of the cross-examination of the witness upon which these three assignments are founded because we think that it clearly shows that the errors are not well assigned. As we held in Fields v. State, supra, “It is within the sound judicial discretion of the trial court to control the detailed examination of witnesses, and, unless an abuse of this judicial discretion is shown to the appellate court, it will not disturb or reverse the ruling.” No abuse of the sound judicial discretion thus vested in the trial court has been made to appear to us and we do not see wherein the defendant was harmed by the rulings complained of. See also as to the discretion in the conduct of trials generally which necessarily is vested in the trial judge, Wilson v. Johnson, 51 Fla. 370, 41 South. Rep. 395; Adams v. State, 55 Fla. 1, 46 South. Rep. 152; Hughes v. State, 61 Fla. 32, 55 South. Rep. 463; Malsby v. Gamble, 61 Fla. 310, 54 South. Rep. 766.
The ninth, tenth and eleventh assignments which are argued together are as follows:
*677 “Ninth Assignment of Error.
The Court erred in sustaining the objection interposed by the State to the following question propounded by counsel for the defendant to the witness, Willie Cook, to-wit: ‘Why did you swear on examining trial that you did not know whether it was open or not, if you now swear that you saw the blades?’ ”
“Tenth Assignment of Error.
The Court erred in refusing to permit the witness, Willie Cook, to answer each of the following questions propounded to her by counsel for the defendant, to-wit: ‘Well, your memory was better then than it is now ?’ ‘Well, can you tell the jury here why you have changed your testimony?’ ‘Why was it, Miss Willie, that you swore to that statement at that time, and make a different statement now?’ ' And erred as to his ruling as to each of said questions severally.”
“Eleventh Assignment of Error.
The Court erred in refusing to permit the witness, Willie Cook, to answer the following question propounded by the defendant’s counsel, to-wit: ‘Well then, as a matter of fact, haven’t you strengthened up your testimony for the purpose of trying to convict these people ?’ ”
. Again we think it advisable to copy that portion of the cross-examination of the witness upon which these assignments are based. The witness was still being interrogated as to what took place between her and the defendant. “Q.
In view of what we have already said in disposing of the preceding assignments further discussion would seem to be unnecessary. The witness had been cross-examined at great length and we do not see wherein the trial judge abused the discretion vested in him in making the rulings upon which these assignments are based.
The twelfth assignment is as follows: “The court erred in refusing to permit, on its own motion, the witness, Willie Cook, to answer the following question propounded to her by defendant’s counsel: ‘Well now, if you say you got blood on yourself, why is it there is no blood on these drawers, do you know ?’ ”
The prosecuting witness was still being cross-examined, and the bill of exceptions discloses the following proceedings: “Q. He didn’t bloody you any place in front, did he? A. I didn’t get it .on my drawers,11 got it on
Suffice it to say that no error is made to appear here. We content ourselves with what we have said in discussing previous assignments.
We now reach the thirteenth assignment. “The Court erred in sustaining the objection interposed by the State to the following question propounded by the defendant’s counsel to the witness, Willie Cook, to-wit: ‘Miss Cook, didn’t you have a miscarriage over in Savannah? ‘As a
Our treatment of the second and third assignments disposes of this assignment adversely to the contention of the defendant.
The fourteenth assignment is as follows: “The Court erred in refusing to permit counsel for the defendant to interrogate the witness, Willie Cook, as to her movements and actions on the following day to that of the alleged rape, and in holding, over the objections of the defendant, that she had been sufficiently interrogated with reference thereto.”
An examination of that portion of the cross-examination of the witness upon which this assignment is predicated fails to convince us, even when aided by the argument of the defendant, that the trial judge abused his discretion in controlling the detailed examination of the witness and in holding that she had been sufficiently interrogated as to the matters songht to be further inquired into.
The fifteenth assignment is abandoned.
The sixteenth, seventeenth and eighteenth assignments are as follows:
“Sixteenth Assignment of Error.
The Court erred in sustaining the objection of the State' to the following question propounded by the defendant to*684 the witness, Lucy Nelson, to wit: ‘Isn’t it a fact that about the time you expected Miss Cook to visit you that you left your home one night in your stocking feet and came to Will Tully where he was in his automobile and went out with him at night into the woods in the automobile, and then after being out with him a while went to the depot,’ and in refusing to permit said witness to answer §aid question.”
“Seventeenth Assignment of Error.
The Court erred in sustaining the objection interposed by the State to the following question propounded to the witness, Lucy Nelson, to-wit: ‘And that same evening, don’t you write somebody or send somebody word that they could not call that evening, that you were going out to a party with somebody else?’ And in refusing to permit the witness to answer said question.”
“Eighteenth Assignment of Error.
The Court erred in sustaining the objection interposed by .the State to the following question propounded to the witness, Lucy Nelson, to-wit: ‘I will ask you this question, you need not answer until the court has a chance to rule — as a matter of fact, didn’t Mr. McCorkindale open your room door the other night and there was a man in there with you in bed?’”
It would seem to be obvious from our discussion of preceding assignments; especially the second and third, that these errors are not well assigned. If, as we have held, 'the prosecuting witness could not be cross-examined- along this line, then certainly another State witness could not
The nineteenth- and twentieth assignments are. as follows:
“Nineteenth Assignment of Error.
The Court erred in refusing to permit the witness, Frank Kline to answer the following question, namely: ‘Now if your testimony at this trial here differs from that you gave the County Judge, which, Frank, is true?’ ”
“Twentieth Assignment of Error.
The Court erred in refusing to permit the witness, Frank Kline, to answer the following question, namely: ‘The answers you gave to the questions put to you by Mr. McCord before the County Judge’s hearing were true, were they not,’ and in stating in ruling upon said question as follows, to-wit: ‘Be need not answer that question, he cannot be asked that question in that form. No witness can be asked as to another examination in another court whether or not it was true. It is unfair to the witness to expect him to answer the question.’ ”
Frank Kline was the third witness introduced on behalf of the State and testified on his direct examination that he had charge of the property on the night where the crime with which the defendant was charged was said to ave been committed, and proceeded to state what he saw and heard in connection with what occurred that night, the details of which were rather slight and of no great
We have now reached the twenty-first assignment, which is as follows: “The Court erred in refusing to permit the witness, Theo Proctor, to answer the following question, namely: 'Would it be possible to operate that machine so as to get it out of the rut there and get it under headway at full speed, and still hold a person with one hand?’ and erred in remarking, on refusing to permit the witness to answer said question, as follows: 'Well, he cannot answer that question; some men are more expert about handling cars and some men are more expert about handling women, so he cannot give his opinion about what a man can do.’ ”
We do not think that error has been made to appear here. As we held in Schley v. State, 48 Fla. 53, 37 South. Rep. 518, “It is the province of the trial court to determine whether or not a witness offered as an expert has such qualifications and special knowledge as to warrant
The twenty-second assignment is: “The Court erred in refusing the request of the jury and the motion of the defendants that the jury be permitted to view the premises where it is alleged that the offense charged in the indictment was committed.”
The bill of exceptions discloses that during the trial, at the close of the examination of J. P. S. Houstoun, one of
At the close of the trial the following proceedings took place: The Court: I have considered the motion and I don’t think it best to send this jury out to the locus in quo, therefore the motion will be refused. Mr. Price: Your Honor will note an exception. The Court: I will state my reason; the principal reason is that it is private property, and it has been indicated to me that there are shrubs and plants, and part of the recently planted, that might be disturbed, and that the owners of the property already, or those in charge at least, feel that there has been a good deal of attention attracted to that particular place, and I am of the opinion that they probably would rather not have the jury examine the premises. Mr. Price: There is a public drive way, may it please the court, where there is no possibility of getting out or affecting the shrubbery. The Court: I have been out there, and the gates were both locked when I went out there. I have no authority to direct anybody to unlock those gates and admit the jury to view those premises. In addition to
Section 3989 of the General Statutes of Florida is as follows: “The court may order a view by the jury.”
We have held that the trial court is to determine the necessity for a view of the premises and that his discretion in denying a motion for such view will not be disturbed by this court, unless a clear abuse of such discretion is made to appear. Coker v. Merritt’s Executor, 16 Fla. 416; Thompson v. State, 52 Fla. 113, 41 South. Rep. 899; Atlantic Coast Line R. R. Co. v. Whitney, 65 Fla. 72, 61 South. Rep. 179; Chancey v. State, 68 Fla. 93, 66 South. Rep. 430. See also the note on page 368 of. 42 L. R. A., where numerous authorities will be found collected.
The twenty-third assignment is as follows: “The Court erred in charging the jury, upon its own motion, as follows, to-wit: The evidence of the reputation of the prosecuting female witness for chastity has been admitted for your consideration for the purpose of showing the probability of the consent on the part of the female witness claiming that she had been assaulted, it being more probable that a female of unchaste life would consent to an act of carnal intercourse than one whose past life was without blemish. This class of evidence, even if it is shown that the prosecuting witness’ character for chastity is bad, goes only to the question of whether or not the woman consented.”
In passing upon a single instruction or charge, it should be considered in connection with all the other instructions .and charges bearing on the same subject; and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction or charge must fail, unless under, all the peculiar circumstances of the case the court is of the opinion that such instruction or charge was calculated to confuse, mislead or prejudice the jury.” See Davis v. State, 54 Fla. 34, 44 South. Rep. 757, and Lewis v. State, 55 Fla. 54, 45 South. Rep. 998. We are of the opinion that this assignment has not been sustained. We have examined Anderson v. State, 104 Ind. 467, 4 N. E. Rep. 63, and State v. Duffey, 128 Mo. 549, 31 S. W. Rep. 98, cited to us by the defendant, but see no occasion for commenting thereon. We would again refer to Rice v. State, 35 Fla. 236, 17 South. Rep. 286, 48 Amer. St. Rep, 245, and our comments thereon in the former part of this opinion. See also the discussion in Wharton’s Criminal Law (11th ed.) pages 865, 923 and 951, and the authorities there cited.
The twenty-fifth and twenty-sixth assignments, which are based upon requested and refused instructions, are abandoned, the defendant stating in his brief that such requested instructions “were substantially covered by other charges given by the court.”'
The last assignment is based upon the refusal of the motion for a new trial. The only ground of this motion which is urged before us is the sufficiency of the evidence to support the verdict. Although there are sharp conflicts therein upon material points, after carefully examining the same we are of the opinion that the jurors, acting as reasonable men, might well have found the defendant guilty upon the evidence adduced. Having reached this conclusion, following our repeated rulings, we must refuse to disturb the action of the trial judge in denying such motion. See Florida East Coast Ry. Co. v. Geiger, 66 Fla. 582, 64 South. Rep. 288.
The judgment will be affirmed.