28 Fla. 90 | Fla. | 1891
Edward T. C. Dickenson, the defendant in error, instituted his action of trespass in the Circuit Court of Jackson county; in the First Judicial Circuit, on the 28rd day of December, 1886, against Daniel W. Williams, the plaintiff in error. The declaration alleging that Dickenson ivas the owner and in possession of a certain frame building in Jackson county, to-wit: a gin house, together with the fixtures usually belonging to a building in which cotton is ginned by steam power, consisting of a water tank, one cotton-press, one steam engine, boiler and machinery, two cotton gins with feeders and condensers, two gin feeders and condensers, lots of cotton in the seed and lint, lots of cotton seed, bagging and ties, tools, belting, shafting'and pul
On the 30th day of May, 1887. at the term of the Circuit Court preceding the term at which the cause was tried, the defendant Williams filed his petition for a change of venue of said cause, upon the ground that the plaintiff Dickenson had an undue influence over the minds of the inhabitants of said county, and that lie did not believe that he could get a fair and impartial trial in said county ; that said Dickenson is a large merchant, centrally situated in the county, having customers in almost every section of the county, and has great influence over those customers; that the said Dickenson and his friends, as your petitioner is informed and believes, has been very active in trying to get np evidence in the case against your petitioner,- and he, Dickenson, has been for several years a bitter enemy of your petitioner, and lias sought, as your petitioner believes, to render your petitioner odious in the minds of the inhabitants of the county ; that one of the counsel of said Dickenson in said suit, as well as the clerk of said court, both of whom are influential, have been for several years, as your petitioner is informed and believes, bitter enemies of your petitioner, in consequence of which facts your petitioner believes that he has been rendered so odious that he cannot
The first error assigned is the order sustaining the plaintiff’s demurrer to the defendant’s plea in abate ment. This plea seeks to invoke the doctrine held in the English courts, that where a private individual has been damaged in person or property by the tortious act of another, which act amounts to a felony, the matter should be disposed of before the proper criminal tribunal, in order that the justice of the country may be first satisfied in respect to the public offense, before the injured individual can seek civil redress for the private wrong inflicted upon him. The redress of the private wrong being postponed until after the public justice is satisfied. Two reasons for this rule are assigned in England: First, the party injured is relied upon to take the place of public prosecutor; in some cases he has even been required to employ counsel to prosecute on behalf of the crown, and his interest in the accomplishment of public justice is kept alive by postponing the redress of his private grievance; and, second, in cases of felony, there was a forfeiture to the crown of the felon’s property, and the private individual was not allowed to acquire priority over the crown in satisfaction of his demands upon thg property of the felon. But in this country this doctrine of the suspension of the civil remedy in cases of felony has been repudiated by the great weight of the American authorities. Under the system of laws preprevailing in the United States the reasons for this
The second error assigned is .the refusal of the court to grant the defendant's application for a chango of venue. In the case of Greeno vs. Wilson, decided at the lasttern) of this court, 27 Fla., 492; 8 South. Rep., 723, it is held that the granting or refusal of an application for a change of venue is a matter placed by the statute within the judicial discretion of the court, and that while the exercise of such discretion is the subject of review by the appellate court, it Avould not interfere unless there Avas a palpable abuse, or grossly improvident exercise of the discretion imposed. It appears from the order of the judge denying this application that evidence Avas heard and submitted upon the motion. What that evidence was, the record does not dis
On the l'f>th of November, 1887, while the court was holding its regular term, and when this caij.se stood" ready for trial, and, as the order recites, when it was set by appointment of counsel for trial, the defendant's counsel applied for a temporary postponement or adjournment thereof on account of the absence of •other attorneys for the defense. The court granted the application for postponement, until the following-day, but upon the condition that the costs of that day’s proceedings, in so far as they related 1o this case, including that day’s attendance of witnesses, should be taxed against the defendant-, whereupon final judgment for the costs thus taxed, amounting to•$85.45, was entered in favor of the plaintiff against the defendant. Though no exception appears from the record to have been taken to this order, it is assigned as the third error. Under the provisions of sec. 107, p. 836, McClellan’s Digest, which provides that “ it shall be lawfnl for a court or judge at the trial of any cause, where they or he may deem it right for the purposes of justice, to order an adjournment for such timé, and subject to such terms and conditions as to costs and otherwise as they or he may think fit,” we think that the entry of the judgment for costs was fully authorized.
The fourth error assigned is the admission in evidence of the depositions of one Prior Wheeler, taken while he ivas an inmate of the State’s prison serving
The fifth error assigned is the admission of the evidence of the witnesses Lettie Wheeler, Ida Wheeler, Alfred Nichols, J. P. Bevis, Byrd Garrett and Wylley Long. Lettie Wheeler was the wife of the convict witness Prior Wheeler. She testified in substance that she knew the time the Dickenson gin-liouse was burned; that the defendant Williams was at her house on the Tuesday before the burning, when he told her that he was going to Ben Baker’s who lived in the neighborhood, and asked me if my girl could go to Greenwood and tell Prior lie wanted to see him. “I (witness) sent for prior and he came. Mr. ’Williams told me to tell Prior to stay u.ntil he (Williams) came back. He sa-id he had offered Prior a good home and support for a lifetime, but he, a fool, would not take it. Mr. Williams returned in a short while after Prior had come, and he and Prior had a long talk in the corner of the fence, down the road from my house, but I do not know what was said.”
In the depositions of Prior Wheeler, that we have seen were properly admissible, he testifies to the same facts and interviews related in the testimony of Lettie and Ida Wheeler, and testifies directly as to the existence of a conspiracy between himself and the defendant "Williams to burn this gin-house ; and testifies that the subject-matter of the conspiracy was discussed at the interview, the occurrence of which, Lettie and Ida "Wheeler both verify. The evidence of both Lettie and Ida "Wheeler was pertinent and proper, not only because it tended to establish, circumstantially, the formation of a conspiracy between Williams and Prior Wheeler, in that it showed an earnest solicitude onthepart of Williams privately to interview "Wheeler shortly prior to the burning; and the declaration by him of an offer from him to "Wheeler of a good home for a lifetime; and the actual holding of a long and confidential interview by him with Wheeler; but it corroborates the evidence of Prior Wheeler upon material points in the case. There was no error in the admission of this evidence.
Alfred Nichols, the admission of whose evidence is also included in the same assignment of error, testified that during the Spring term of the Circuit Court in 1887, "Williams came up to his gate and stated that he was riding around trying to find witnesses to invalidate
,1. P. Bevis, the admission of whose evidence is also included in the last assignment, of error, testified that at a Justice’s Court held at his house in June, 188G, Williams said that he had worked soon and late at Dickenson’s arid Dickenson was stealing from him every way he could; and that Dickenson might think he was done with it, but he would have satisfaction if it took him forty years to get it. There was no error ' in the admission- of this testimony. The declarations
The admission of Byrd (rarrett’s and Wesley Long’s; evidence is also included in the last assignment of error. These- two witnesses both testify to being at Prior Wheeler's house playing cards on one Sunday when 'Williams came by and called Wheeler out and had a 'lengthy private interview with him, the purport of which they did not hear. This testimony we think was pertinent and properly admitted. Like the testimony of Lettie and Ida Wheeler, discussed above, it showed the holding of private interviews between Wheeler and Williams at the solicitation of the latter, prior to the fire, and was a pertinent circumstance tending to show the formation of a conspiracy between them; corroborative also of Prior Wheeler’s evidence as to the fact that such an interview at the time and place was held by them.
The sixth error assigned is the admission of the evidence of W. D. Sorey, as to who made tracks like those testified to by him. This witness testified to having been at the ruins of the gin-house next morning after the fire; that he there examined tracks and found one peculiar track that went from the gin-house across the road. The peculiarity about this track was that the heel seemed to drop back. He then testified that the defendant 'Williams made tracks like that,
The seventh error assigned is an objection to the admission in evidence of the testimony of the witness, W. L. Garrett, as to what Prior Wheeler had told him that Williams had told Wheeler in reference to the burning of plaintiff’,s gin-house. It was error to admit this testimony. The evidence of Prior Wheeler and of W. L. Garrett both show that these conversations between them were had anterior to the formation of any conspiracy between Wheeler and Williams. Under the ride governing the admission in evidence of the declarations of co-conspirators, which is thus stated in 1 Greenleaf on Evidence, sec. 111: ‘ ‘ The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original con
The eighth error assigned is because the plaintiff was allowed to ask W. L. Garrett (he being ] daintiíf’ s witness) whether he had not stated on the former trial that Prior AAUieeler had told him that twice he was going- to burn the gin, but that he (the witness) did not believe him. Questions of this kind tending- to contradict or impeach a witness are not ordinarily permissible under the rule that a party is.not at liberty to impeach his own witness; but under the provisions of our statute, sec. 26, p. 518, McClellan’s Digest, in case a witness prove adverse, the party producing- him may contradict him by other evidence, or prove that he has made at other times a statement inconsistent with his present testimony; but in such case the ground work
The ninth error assigned is the refusal of the court to permit the defendant on the cross-examination of the witness W. L. Garrett to ask him “whether Prior "Wheeler owed him anything, and whether he had not told Wheeler that if Wheeler would pay him $25 and burn that gin he (Garrett) would give him $25 of his debt to him.” The witness answered that nothing was said about indebtedness to him from Wheeler, but his answer was stricken out by the court, which latter ruling is assigned as the tenth error. This witness was examined in chief as to conversations had between himself and Prior Wheeler in reference to the burning of the gin-house, and in reference to what the
The twelfth assignment of error is in the admission by the court over defendant’s objection of the testimony of Ike King to the effect that the defendant Wil liams had told him that if he would swear that Ben Baker (another of plaintiff’s witnesses) had told him that Dickenson had hired him to swear, and that if l:e would so swear, he (Williams) would give him a mule to work for a year, and if he won the case he would give him any amount of money he (King) wanted; and that he (witness) had never told Williams that Ben Baker had said that if he and the witness (King) would go in together and swear, they would make a good thing out of Dickenson. “I never told Williams
The thirteenth assignment of error is the overruling of the defendant’s objections to direct interrogatories, and sustaining plaintiff's objections to cross-interrogatories propounded to Prior Wheeler. The objection urged is to the sixth and seventh direct interrogatories to Prior Wheeler, to the effect that they are too general, indefinite and irrelevant. These objections are untenable. The interrogatories objected to sought to draw from the witness conversations had with the defendantjWilliams in relation to the burning of the gin,
The fourteenth and last assignment of error is the overruling of the defendant's motion for a new trial. The various grounds of this motion have already been discussed in what has been said, except the objections urged therein to the charges given by the court to the jury, and we will consider that feature of the motion only. Objection is urged to the following portion of the court’s charges to the jury: “You may, in determining the weight you will give to the evidence of a witness or witnesses, take into consideration their manner on the stand; whether interested in the issue of this suit; whether .related to the parties; whether1 biased in favor of either party, or prejudiced against either of the parties; interest, relationship, Mas or prejudice are of great consideration with you in determining the weight of the witnesses’ evidence in this ” “Threats by a person to do an act when re-case.
For the errors mentioned in tlie instructions of the court below to the jury, the judgment is reversed and a new trial ordered.