Williamson v. StateWilliamson v. State
Upon this indictment the defendant was tried and found guilty of aggravated assault. From the judgment of convictiоn writ of error was taken.
The assignments of error are based upon the denial of defendant‘s motion for arrest of judgment and for a new trial, and the alleged error of the court in permitting the witness Wooten to testify to matters not in rebuttal.
The motion in arrest of judgment was grounded upon the proposition that an aggravated assault can be committed only with a deadly weapon and that the instrumentality with which the indictment charges that the offense was committed was not a weapon, but that the evidence did not show that the car alleged to have bеen used in the commission of the offense was used as a weapon. The same question was raised by the motion for new trial, one of the grounds of which was that the court erred in charging thе jury that the defendant could be convicted of an aggravated assault under the evidence in the case.
It is contended by plaintiff in error that an automobile, not having been designеd as a deadly weapon, cannot become such in contemplation of
In the case of Blige v. The State, 20 Fla. 742, this court held that a weapon may be a deadly weapon, although not specially designated for offensive or defensive purposes or for the destruction of life or the infliction of injury. The alleged weapon in that case was a scale weight. In the opinion in that case, а number of cases are reviewed, and it was stated that it will be seen from such cases that a stone, an axe, or a chair may be considered dangerous or deadly weapons, depending entirely upon the proof of the mode and manner of their use. In Pittman v. The State, 25 Fla. 648, 6 So. 437, this court defined a deadly weapon as one which is likely to produce death. Bishop on Statutory Crime, 3rd Ed., Sec. 320, defines a deadly weapon as, “A weapon likely to produce death or great bodily injury. In case of doubt, the manner in which it was used may be taken into account in detеrmining whether or not it was deadly. And when the facts are all established, the question whether a particular weapon was deadly or not is of law for the court; yet practically, as in mоst instances the establishment of the facts awaits the rendition of the verdict, the jury must pass upon this question under instructions from the court.” The Supreme Court of North Carolina in State v. Sinclair, 120 N.C. 603, 27 S.E. 77, holds: “A deadly weaрon is one that must kill or that may kill, but is one which would likely produce death or great bodily harm, used by the defendant in the manner in which it was used.” And the same court, in State v. Archbell, 139 N.C. 537, 51 S.E. 801, says: “A deadly weapon is not one thаt must or may kill. It is an instrument which is likely to produce death or great bodily harm under the circumstances of its use. The deadly character of the weapon depends sometimes more upon the manner of its use and the condition of the person assaulted than upon the intrinsic
A large stick may constitute a deadly weapon. Lindsay v. The State, 67 Fla. 111, 64 So. 501. This court, in a civil case, held that a motor vehicle, operated upon the public highways, is a dangerous instrumentality, and that the owner who entrusts it to another to operate is liable for injury caused to others by the negligence of the person to whom it is entrusted. So. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629. In the case of People v. Clink, 216 Ill. App. 357, it was said: “It is contended that an automobile is not a deadly weapon within the meaning of the Statute on Assault,
We cоnclude, therefore, that an automobile may be so used as to constitute a deadly weapon within the meaning of
It is true there is no allegation in the indictment designating the automobile referred to therein as a deadly weapon, but it did describe the instrumentality and the manner of its use in the making of the unlawful assault. If there was any error in the omission of a direct allegation to the effect that the automobile constituted a deadly weapon, it was not sufficiently serious to mislead the accused or embarrass him in the preparation of his defense, and the motion in arrest of judgment was properly denied. Upon motions in arrest, indictments thus attacked will receive a liberal construction. And as in this case the indictment sufficiently describes the instrumentality used and the manner of its use to show that the same constituted a deadly weapon, in the light of common knowledge as to the character of the instrumentality described, and its capability of being so used as to produce death or great bodily injury, the indictment was properly held sufficient as against an attack by motion in arrest of judgment. Studstill v. the State, 83 Fla. 623, 92 So. 151; Fountain v. The State, 109 So. 463, and cases cited.
When the State was making out its case, the witness Wooten was used and testified that he had investigated the scene of the alleged assault, had observed the location of the automobile tracks, and described such location. After the State had closed its case and the defendant had introduced his evidence, the court permitted the State to recall this witness and he was allowed to testify, over the objection of the defendant, that the marks made by the front wheels of the car were thе marks of Michelin tires and those of the rear wheels Goodyear tires; that he was familiar with the tread of such tires and was able to identify the marks made by them. He further testified that the defendаnt had permitted him to look at his car and that he saw that it was equipped with tires of that character on the front and rear wheels respectively. This was not in rebuttal of anything brought out by thе defendant. It should have been produced by the State when making out its main case. However, the rules of practice governing the order in which testimony should be introduced are permitted to be relaxed by the Court, in the exercise of a sound judicial discretion, in the furtherance of justice, under the law, and are not to be applied with such unbending rigor as to produce injustice. No doubt, if the defendant had requested it, the court would have given the defendant an opportunity to call witnesses to rebut this testimony, but it appears that no such application was made to the court. “The proper rule for the exercise of this discretion,” it has been said by an eminent author, “is, that material testimony should not be excluded becausе offered by the plaintiff after the defendant has rested, although not in rebuttal, unless it has been kept back by a trick, and for the purpose of deceiving the defendant and affecting his сase injuriously.”
We find no reversible error in the record.
Affirmed.
ELLIS, C. J., AND STRUM, J., concur.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J.J., concur in the opinion.