41 Fla. 547 | Fla. | 1899
On January 24, 1898, the County Solicitor for Escambia county filed in the Criminal Court of Record of that county an information charging that Pat McHugh, as mayor of the city of Pensacola, and Ed. A. Wallace, as marshal of said city, on the 8th day of August, 1897, did verbally threaten to accuse Marie Anderson of an offence against the code of ordinances of the, city of Pensacola, and did then and there, with the intent to extort money from the said Marie Anderson, maliciously verbally threaten ta accuse said Marie Anderson of the of-fence of keeping a bawdy-house against the ordinances aforesaid, and to have her arrested for same if she did not pay to them, or either of them, the sum of fifty dollars, and that in the manner and form as aforesaid, by the means aforesaid, he the said Pat McHugh, and he the said Ed. A. Wallace, did then and there maliciously threaten to accuse the said Marie Anderson of said of-fence with intent thereby to extort money from her, the said Marie Anderson, against the form, &c.- Wallace moved to quash the information upon the ground that it was vague, indefinite, uncertain and charged no of-fence. This motion was overruled, and thereupon defendant was arraigned and pleaded specially, first, a former conviction and sentence upon an information in the same court charging by the first count that Pat McHugh and Ed. A Wallace on August 7, 1897, did unlawfully and maliciously agree, conspire, confederate and combine to extort, obtain and procure of and from Melissa Zurich payment by her of a large sum of money, and in order to extort, obtain and procure the payment by her of the sum of one hundred dollars, did corruptly afid unlawfully conspire to verbally threaten to have the
I. The first error assigned relates to the ruling refusing- the motion to- quash. The contention is that the information alleges legal conclusions only, the words used in making the threat being omitted, and that the information fails to charge that the threats were made
II. The State’s demurrer to defendant’s special pleas was properly sustained, because neither the former conviction nor the former acquittal was for the same offence as that charged in the information in this case, and to sustain pleas of this character the offences must be the same. Newberry v. State, 26 Fla. 334, 8 South. Rep. 445; Tuberson v. State, 26 Fla. 472, 7 South. Rep. 858;
• IV. Marie Anderson testified that upon her appearance at the police station on Sunday, August 8th, she was admitted into the private office of the mayor, where she found McHugh and'Wallace alone; that McHugh asked’ her name and Wallace told him it was Marie Anderson, and that she kept a large house with eight or ten girls; that she replied that she did not keep a large house, that there were only two' girls at her house; that Wallace said she kept eight or ten girls; that he wanted fifty dollars, and that she must pay it next morning or go to jail; that she had not been served with a warrant, was not asked to plead guilty tO' any offence, no witnesses were examined against her, nor was she asked if she desired any witnesses to swear for her; that she paid Wallace twenty-five dollars next morning between nine and ten o’clock; that she subsequently paid the balance partly to- McHugh and partly to AVallace and that part of it was paid after Wallace came to her house and asked if she had any money, and told her if she did not pay “that fine” she “would have the yellow fever.” She also stated that on the Sunday in question shg. saw all of the State’s witnesses at the police station. Thé State thereupon introduced various other witnesses who testified that they were on August 7, 1897, notified by Regan to appear at the police station on the next day; that they did so and found McHugh and Wallace in a private office; that they were separately admitted into this room and demands were made upon them by McHugh and Wallace for sums of money; that
V. Rosa Johnson, one of the State’s witnesses, had testified on direct and cross-examination that she was on August 8, 1897, residing at 40 E. Saragossa street; that when she appeared before McHugh and Wallace on that day Wallace asked her if she rented a house, and when she said yes, he said he wanted twenty-five dollars; that McHugh and Wallace asked her if she rented a house and fined her for renting a house, although she knew it was not against the law to rent a house. The
1. The ruling upon the questions first proposed was correct. An affirmative answer to the question: “was that house a house of prostitution?” taken in connection with previous admissions that she had rented it and resided there, would have furnished pertinent evidence against her upon a prosecution for keeping a house of ill fame. There was sufficient before the court for the latter to see that the answer would tend to criminate the witness, and to permit her to avail herself of the privilege without requiring her to say in so many words that it would tend to criminate her, or to explain how it would tend to do so'. The rule stated in Ex parte Ed. Senior, Jr., 37 Fla. 1, 19 South. Rep. 652, is that while the witness must judge of the effect of his answer and
2. We fail to see what relevancy or bearing an answer to the question, “what is the name of your friend,” could have had upon the issues being tried. It was wholly immaterial what friend of the witness had paid a fine for her when she was under arrest. In fact there was no evidence that this witness was ever arrested except as implied in her statement on cross-examination, “when I was arrested a friend paid my fine.” No other allusion to any arrest occurs in her testimony, and the fine here mentioned by her evidently refers to some fine other than the one which defendant claims was imposed upon her on August 8, 1897, for she states that she paid that sum herself at various times without ever having been under arrest. Even if the court declined to require the witness to' answer the question for an erroneous reason, the ruling should not be disturbed where it clearly appears that the answer would have been wholly irrelevant and immaterial.
VI. On cross-examination defendant propounded to J. E. Lawless, a State’s witness, the following question : “Are there any criminal charges pending against you?” which the court excluded upon objections by the State, but the grounds of objection are not stated. There is some conflict of authority as to the propriety of questions of this nature on cross-examination. All
VII. Felix Glackmeyer, a State witness, testified that in August, 1897, he was city clerk of the city of Pensacola, and held such office at the time of the trial. He produced a document and testified that it was the police court docket. A portion of this docket including cases from August 7th, to 14th, 1897, was then offered in evidence, and it fails to show that any proceedings were had in the police court on August 8, 1897, or entries made thereon as of that date. The defendant thereupon propounded to the witness the following question: “Do you know whether or not fictitious names are put on that docket, whether parties would just pay their fine and not go to court? You know whether or not fictitious names are frequently entered on the docket where parties did not appear in the court, but paid the fine for the offence charged?” These questions were excluded on objections by the State, and we think correctly so, because they were not properly in cross, and were not framed to impeach that part of the docket offered in evidence by showing a practice
VIII. W. H. H. McDavid testified on behalf of the State “I know Rosa Johnson. She was arrested a good many times. I do not remember any particular charge. She paid me ten dollars in November which I gave to Wallace.” Defendant objected to this evidence as irrelevant and immaterial, but the court overruled the objections. Rosa Johnson was a State witness, and it is not easy to see what object the State’s counsel had in offering evidence tending to discredit her by showing that she had been arrested a good many times. The first part of McDavid’s testimony was clearly beneficial to the defendant, and he has assigned no error on it in this court. Pie does insist, however, that the court erred in overruling his objections to the statement that “she paid me ten dollars in November, which I gave Wallace.” There is no doubt that this statement of the witness was irrelevant and immaterial. The State did not attempt to show that this ten dollars was paid in pursuance of the demand made upon her by Wallace and McHugh on August 8th, or in pursuance of a demand made upon her by either of them at any other time. While the court should have excluded it, we are clearly of the opinion that it did not and could not injure the defendant. It was an isolated immaterial fact, harmless in itself and one from which no prejudicial inferences could have been drawn by the jury. Nc> effort was made to show that Wallace received this money in his official capacity, or that he failed to properly account for it, or that it was even paid to him as a fine or money due the city. The statement did not tend to corroborate anything in the testimony of Rosa Johnson or any other witness. Standing alone, or in combina
IX. The defendant was sworn as a witness and testified that in August, 1897, he was marshal and McHugh mayor of Pensacola; that he had heard the testimony of Melissa Zurich, Nellie Payne, Mollie McCoy, Pauline Spencer and Mabel Spencer; that of his own knowledge they were keepers of bawdy-houses; that he knew Major Cowart, Charles Evans and Jim Goldstucker who he said were gamblers; that these parties were summoned to appear before the mayor on Sunday; that this was done under the direction of the mayor as he thought it better than to' make wholesale arrests; that he and McHugh chose this method because the latter said it was a better way to suppress crime and had been debated in council; that they selected an officer tO' summon the parties to appear; that nothing was said to these people about wanting money; that those who pleaded guilty to visiting bawdy-houses were required to pay fines; that there were no threats made about prosecution; that he did not know the parties were to appear at the police station on Sunday until the mayor told him to be there at a certain hour; that Melissa Zurich requested her name to* be put down as Melissa Zack. The State had introduced evidence tending to show that there was another docket from which the mayor’s docket was copied as cases were disposed of by the police court, known as the turnkey’s docket; that sometime after the 8th of August, 1897, Rev. Mr. McNeil preached a sermon on reform of government, male
(1) On cross-examination he stated that he and McHugh were in the mayor’s private office on Sunday, August 8, and received these people in the private room one at a time; that he remembered Melissa Zurich, she was there. The State then asked the witness “how much she was asked for?” to which defendant objected, because it was not in cross, was immaterial and irrelevant, and assumed facts not admitted by defendant to have been proven. These objections were properly overruled. The defendant had testified on direct examination that Melissa Zurich was there; that some of the parties pleaded' guilty and were required to pay fines for visiting bawdy-houses; that Melissa Zurich requested her name to be put down as Melissa Zaclc. The question was therefore strictly in cross; the answer would be material and relevant upon the question of defendant’s knowledge and intent, and the question did not assume any fact to- be true which defendant had denied or produced any proof to disprove. Melissa
(2) Another question propounded to defendant on cross-examination was: “whose duty is it collect the fines imposed by the mayor?” Several objections were urged, but only one is here argued. It is said that the question called for defendant’s legal opinion; that the ordinances of the city of Pensacola made it the duty of the marshal to collect all fines imposed, and that under Section 11, Chapter 4513, acts 1895, the courts are required to take judicial notice of all ordinances of said city. The answer of the witness was that he sometimes collected the fines, and sometimes sent a policeman for them. He did not literally answer the question as to whose duty it was to collect them, but stated who actually collected them, thereby recognizing it to be his duty as marshal. His answer being therefore the same in substance as the city ordinance of which the court was required to take judicial notice, we fail to see how he has been harmed. McCallum v. Driggs, 35 Fla. 277, 17 South. Rep. 407; Roof v. Chattanooga Wood Split Pulley Co., 36 Fla. 284, 18 South. Rep. 597.
(3) Assignment of error No. 27 complains that the court required defendant to testify that he collected money from Mollie McCoy and saw her at her house, and assignments Nos. 28 to 33 inclusive complain that the court required him to testify as to fines imposed upon Rosa Johnson, Nellie Payne, Pauline Spencer, Mabel Spencer, Jim Goldstucker and Mary Richardson,
X. (1) On cross-examination of defendant the following questions were asked and answers given: (1) Q. Did not you and McHugh go around at night and visit whorehouses ? A. Yes sir. (2) Q. For what purpose did you go ? A. On business. (3) Q. What kind of business? A. Different kinds. (4) Q. Is it not a fact that you went around to these whorehouses while you were marshal? A. It is not a fact. Another inquiry as to whether Wallace and McHugh were not in the habit of visiting barrooms and drinking liquor on Sunday was objected to but no exception was taken to the ruling thereon. The questions numbered x, 3 and 4 above, were objected to as irrelevant and immaterial and as tending to degrade and disgrace the defendant. The defendant was then upon the stand as a witness. In that capacity he was subject in every respect to the rules governing the examination of other witnesses. His position of defendant did not protect him from answering every question proper to- be asked any other witness upon cross-examination. Every matter which he had voluntarily opened up on direct examination he could be required to disclose fully upon cross-examination, notwithstanding- his answers would tend to crimi
(2) Another question objected to as irrelevant and immaterial was: “Didn’t Mr. McNeil -in his sermon about which we have been talking say that you and McHugh were in the habit of laying around barrooms on Sunday and ringing up drinks with electric bells?” to which he replied, “I did not know he said it in his sermon.” The State’s theory evidently was that McNeil’s sermon had given public notoriety to the “Sunday court,” that reading this sermon and hearing it discussed caused Wallace and McHugh to know that they were suspected of improper conduct as officers and with respect to the “Sunday court,” and in consequence thereof to suppress evidence by purloining the turnkey’s docket. The defendant to show that this theory was untrue stated on direct examination that he had read the sermon and there was nothing in it to hurt him. The question asked on cross-examination was proper, because if answered affirmatively it would have tended to show that there was something in the. sermon which hurt him. The answer, however, denied that the sermon contained the charge asked about, and the State offered no evidence to contradict it.
XII. Another instruction requested by the defendant and refused by the court was to the effect that keeping a bawdy-house was an offence against the State laws as well as the city ordinances, and that if the jury believed from the evidence that threats were maliciously made by defendant to accuse Marie Anderson of keeping a bawdy-house and that such threats were of an offence under the laws of the State, instead of the ordinances of the city, “and no- threats relating to the ordinances of the city having been made,” then they
XIII. The defendant requested the court to instruct the jury to the effect that under the ordinances of the city of Pensacola it is the duty of the marshal to obey the orders of the mayor, to cause the police force to obey the same, and to attend to the mayor’s office whenever the mayor directs him to' do so. These instructions correctly defined certain duties of the marshal under the ordinances mentioned, but we do not think the court erred in refusing them, because they would have had a tendency to mislead the jury into' the belief that however illegal and with whatever criminal intent defendant may have acted on the occasion shown by the evidence, if he was obeying the orders of the mayor, he was simply performing an official duty. The court instructed the jury that in considering the evidence they should keep in view two main facts to be proved by the State: first, did defendant maliciously threaten to accuse Marie Anderson of keeping a bawdy-house; second, if so, was the charge made with intent to extort money from her. After defining the words maliciously and intent, the court stated that the word intent in connection with extort signified a premeditated design on the part of the defendant to cause Marie Anderson to pay money which she had not legally been adjudged to pay and which defendant had no reason to believe she would be legally adjudged to pay, and that if the jury believed from the evidence beyond
XIV. The court instructed the jury that defendant is presumed by the law to be innocent; that the burden was upon the State to establish his guilt beyond a reasonable doubt; that “a reasonable doubt is a doubt for which you can give a reason. In other words, if the evidence of defendant’s guilt satisfies you to such an extent as to leave you without a doubt that he may be innocent, for which you can give an intelligent reason, then it would be your duty to convict. Such a doubt may arise either from affirmative evidence tending to show the defendant’s innocence or from the lack of evidence sufficient to' establish his guilt.” In Lovett v. State, 30 Fla. 142, 11 South. Rep. 550, this court very carefully and explicitly laid down a definition of the phrase “reasonable doubt,” and while that definition, like all others that have ever been attempted, when closely analyzed, fails to convey a meaning much more
XV. The court instructed the jury that “the keeping of a bawdy-house is an offence against the ordinances of the city of Pensacola, and if the defendant threatened to- turn Marie Anderson over to' the criminal court for keeping a bawdy-house unless she paid money, this would be threatening to accuse her of a crime against the ordinances of the city of Pensacola.” The only criticism upon this; instruction suggested by plaintiff in error is that it authorized the jury to find defendant guilty, although there was a substantial variance in the proof, in that it authorized them to' find him guilty under an indictment charging malicious threats to accuse of a crime against the city ordinances upon proof of malicious threats to accuse of a crime against the State laws. There being no evidence whatever of a threat to accuse Marie Anderson of a crime under the
XVI. The only other assignment of error argued, except the one discussed in the next succeeding paragraph of this opinion, relates to the order overruling the motion for a new trial. This assignment presents the question as to the sufficiency of the evidence to sustain the conviction. We are of opinion that the evidence is sufficient to sustain the verdict, and that the court below committed no error in overruling the motion for a new trial.
XVÍI. It is insisted that the sentence imposed by the court is vague and indefinite, in that it requires the imprisonment to begin at the “expiration of first sentence,” without stating the nature, duration or time of expiration of the first sentence, or by what court it was imposed. Some of the American courts hold that without an express statute authorizing it, the sentence in felony cases can not be SO' framed as to make the term of imprisonment begin at the expiration of a former sentence, but we hold that under the discretion vested
We find no error in the record sufficient to reverse the judgment against the defendant, except in the sentence imposed. This error does not authorize us to grant a new trial in the case, but only to reverse the judgment and remand the cause for the imposition of a proper sentence. Williams v. State, 18 Ohio St. 46; Bueno v. State, 40 Fla. 160, 23 South. Rep. 862.
Because of the error in the sentence the judgment