85 Fla. 348 | Fla. | 1923
Lead Opinion
In June, 1921, Herman Young was indicted for the murder of Henry B. Driggers. The offense was alleged to have been committed in Hilsborough County on April 2nd, 1921. Hallie J. H. Ellis, Granville Ellis and William H. Young, the plaintiff in error, were charged in the indictment to have been present aiding and abetting the commission of the murder. The plaintiff in error pleaded not guilty. A severance was granted upon motion of the State Attorney and Young was placed on trial April 25th, 1922.
The jury returned a verdict of manslaughter and judgment and sentence were entered against him. He seeks to reverse the judgment on writ of error.
At the very threshold of the case the point is presented that the plaintiff in error was denied a fair trial because a certain venireman called to serve as a juror was held by the court to be qualified as an impartial person over the defendant’s objection that it appeared from the answers of the venireman, to the questions propounded by the court and its authority as to his qualifications, that he was not an impartial person, and therefore not such a person as is contemplated by the Constitution shall serve as a juror in the trial of a felony.
The venireman, who ivas named T. T. Graham, admitted upon his voir dire examination that he had “formed or expressed” an opinion as to the guilt or innocence of the accused. That it -would require evidence to remove the
A person so uncertain of his mental attitude toward another on trial upon a grave and serious charge; so doubtful as to whether a prejudgment by him would influence his deliberations as a juror; who forms an opinion concerning the innocence or guilt of the accused upon a newspaper account of the alleged crime; whose opinion is fixed and would require to be -“shown” that such opinion is wrong cannot be said to be an impartial juror should he be chosen to serve as one.
But the man did not serve as a juror nor does the record show that the defendant exhausted one of his peremptory challenges in excluding the venireman from the panel. But the record does show that the defendant exhausted his full quota of ten peremptory challenges.
The proposed juror was challenged for cause by the defendant and the challenge was not sustained by the court
The record does not disclose that the twelve persons who served as jurors in the case were partial nor that any one of them was not an impartial juror. So far as the record discloses to the contrary the defendant obtained a trial by an impartial jury.
The right secured by the statute to a person on trial for a capital offence to challenge peremptorily ten persons tendered by the State as jurors to try the case, is a right that the defendant may waive. He is not bound to exhaust his full quota of challenges. The purpose is that there may be full assurance of the constitutional guaranty of a trial by an impartial jury. If the defendant is wrongfully required to use one of these ten challenges upon a person tendered as a juror, who should have been excused for cause, and exhausts his full quota of challenges harmful error is undoubtedly committed. See Mathis v. State, 45 Fla. 46, 34 South. Rep. 287. But if the person tendered is held to be qualified but does not serve and the record does not show that the defendant used one of his peremptory challenges, all of which were exhausted; in excusing the prejudiced venireman, can it be said that harmful error has been made to appear? See Green v. State, 40 Fla. 191, 23 South. Rep. 851.
It is the duty of a party complaining in an appellate court of the judgment of a lower court that it was erroneous and was obtained by the denial to him of rights to which he was entitled, to make such error clearly appear to the court to which he appeals, if in truth such error exists. All presumptions are in favor of the correctness of the judgment sought to be set aside. The right to
But that presumption cannot be invoked. The error, if any exists rendering the judgment bad, consists not in overruling the challenge for cause, but in overruling the challenge for cause and permitting the juror to serve or forcing the defendant to use one of his peremptory challenges and exhausting by him of his full quota of challenges when the jury is selected. Unless that is the situation, no injury resulted from the court’s ruling. There was no harmful error. .
This view is in harmony with the decisions of this court, none of which however decide the exact point, that the defendant must use one of his peremptory challenges in excusing the objectionable venireman and must have exhausted his full quota of such challenges when the jury is finally selected.
From anything appearing in the record to the contrary, the defendant had exhausted his peremptory challenges when the objectionable veniremen was tendered. If such was the case the defendant was not injured by the court’s ruling because the veniremen did hot in fact serve. The record does not show that the jury which was finally selected and tried the issue "was incompetént or biased. In the absence of such showing the presumption exists
The McRae case definitely holds that the action of the court in holding a juror to be qualified over defendant’s objection works no injury to the accused if the objectionable venireman does not serve, even though the accused exhausted his statutory number of peremptory challenges, when it does not also appear that any objectionable juror was selected after the defendant’s challenges were exhausted. The reason given for the rule is that the accused has a right to an impartial jury but is not entitled to any particular persons as jurors.
In a ease where an objectionable juror is challenged by the defendant for cause and the court wrongfully overrules the challenge and the defendant uses one of his peremptory challenges to excuse the objectionable venireman, the record should show that the jury finally impanelled contained at least one juror objectionable to the defendant, who sought to excuse him peremptorily but the challenge was overruled.
The first assignment of error is not sustained.
During the trial of the cause R. F. Johnson, court reporter and stenographer, was called as a witness in behalf of the State. He identified a certain document as the stenographic report reduced to writing of the testimony of Dr. H. O. Snow which was given by him on a former trial of the four persons, including the defendant, indicted for the murder of Henry B. Driggers.
During the trial Dr. Snow appeared and gave, in person, his testimony which in substance was the same as that given upon the former trial. Upon cross examination he said that the bullet removed from the dead man’s breast “ranged to the left from the place it entered.”
The reading in evidence of the transcribed stenographic report of Dr. Snow’s testimony given on the first trial is alleged to be harmful eiuor.
The presence of Dr. Snow at the trial and his examination as a witness two or three days afterwards would seem to indicate that even under Section 2723, Revised General Statutes, 1920, a sufficient reason had not been given why the witness was not produced. It is true that it was shown that a subpoena had been issued for the witness among others on April 19th and that an effort to serve it upon the doctor at his office was made on the 21st and two other unsuccessful efforts were made by the deputy to serve him at the office, according to the deputy. The office girl how
Aside from that however the court’s ruling and the State’s offer of the evidence was directly in the face of the provisions of Chapter 8572, Laws of Florida, 1921.
During the January term of the Supreme Court, 1920, in an opinion prepared by the late Judge James T. Wills, the question of the admission in evidence in a criminal case of the testimony of a witness at a former trial was exhaustively discussed by Judge Wills in the majority opinion and by Chief Justice Browne, who took-a contrary view in a dissenting opinion. Following the opinion in the Blackwell case, which is reported in 79 Fla. 709, 86 South. Rep. 224, the legislature enacted the above statute. The language of the statute is somewhat involved but its evident purpose was to destroy the- effect of the opinion in the Blackwell case, supra. The statute seems to have-been ignored in the trial of this case.
Whether the error in admitting the transcription of the stenographer’s notes of Dr. Snow’s testimony given at a former trial was cured by the subsequent production of the witness himself who was required to testify is .the question presented by the second assignment of error.
If it had that effect, and we cannot say it did not, then the defendant suffered an injury wrongfully put upon him. The error committed in allowing the transcribed testimony of Dr. Snow to be read in evidence infringed a fundamental right of the defendant; that of being confronted by the witness against him. It was held in the Blackwell case, supra, that the constitutional guaranty was satisfied by one confrontation, but the legislature by Chapter 8572 supra has declared otherwise and provides that on each trial the defendant shall have the right of confrontation by the witnesses against him.
The word “technical” is sometimes, if not commonly, used to convey the idea of conformation to some formula, conventionality, ritual or the like which has no real significance and is an empty, vacuous ceremony making only for appearance, and not for substance. In such sense, the court’s error was not. technical. It was of substance and may have been very .injurious. J’he second assignment is well taken.
At the risk, however, of being criticized for unnecessary words, we will say that this court has never placed itself upon record as announcing a rule of evidence under which any drawing, map, plan or sketch, however crudely executed and inaccurate it may be- as a representation of a place the topography and land marks of which are objects about which testimony is offered, may be exhibited in evidence.
The,rule as anounced by this court upon the subject is as follows: “A map, plan or picture whether made by the hand of man or photography, if verified as a true representation of the subject about which testimony is offered, is admissible in evidence to assist the jury in understanding the case.” See Adams v. State, 28 Fla. 511, 10 South. Rep. 106.
For the error pointed out the judgment is reversed.
Dissenting Opinion
Dissenting.
In view of the evidence adduced and the charges given, the errors complained of could not reasonably have been prejudicial or harmful to the defendant in the trial that resulted in his conviction of manslaughter. Manslaughter is not a degree of murder, but is a grade or degree of un
Errors iu the admission of evidence that are not vital, will not cause a reversal of a judgment when the testimony clearly establishes the guilt of the accused, and the judgment is in accord with the law and the charge of the court. Wilkins v. State, 75 Fla. 483, 78 South. Rep. 523; Milligan v. State, 75 Fla. 815, 78 South. Rep. 535; McQuagge v. State, 80 Fla. 768, 87 South. Rep. 60; Ward v. State, 83 Fla. 311, 91 South. Rep. 189; Owens v. State, 65 Fla. 483, 62 South. Rep. 651; Kersey v. State, 73 Fla. 832, 74 South. Rep. 983; Chauncey v. State, 68 Fla. 93, 66 South. Rep. 430; Robinson v. State, 70 Fla. 628, 70 South. Rep. 595.
The admission of incompetent evidence is harmless error, when the evidence properly admitted is conclusive of the defendant’s guilt. Hinson v. State, 62 Fla. 63, 56 South. Rep. 674; Edington v. State, 81 Fla. 634, 88 South. Rep. 468; Poyner v. State, 81 Fla. 726, 88 South. Rep 762; Seymour v. State, 66 Fla. 133, 63 South. Rep. 7; Rhodes v. State, 65 Fla. 541, 62 South. Rep. 635; Wallace v. State, 41 Fla. 547, 26 South. Rep. 713; Wilson v. State, 47 Fla. 118, 36 South. Rep. 580; Synes v. State, 78 Fla. 167, 82 South. Rep. 778; Sims v. State, 54 Fla. 100, 44 South. Rep. 737; Patrick v. Kirkland, 53 Fla. 768.
The admission in evidence under Section 2723, Revised General Statutes of 1920, of a stenographic report of the testimony of a physician as to an autopsy held by him upon the deceased, taken on a former trial of the accused with others for the same offense, was harmless as the physician was afterwards “produced” as required by Ch. 8572 of the statutes and testified in the case to all the material facts contained in the report of testimony taken at the former trial which was erroneously admitted in evi
The witness who referred to a drawing in giving testimony stated that was a correct diagram of the location. If under the rule stated in Hisler v. State, 52 Fla. 30, 42 South. Rep. 692, the diagram was not properly used in evidence, the error if any was manifestly harmless as the diagram was not essential 'to the merits of the verdict
Self defense was interposed to justify the firing of the fatal shot that entered the back of the deceased. The statutory elements of manslaughter do not necessarily include an intent to kill.
Section 5032, Revised General Statutes of 1920, provides that: “Homicide is justifiable when committed by any person * in the lawful defense of such person * when there shall be a reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such .design being accomplished. ” ■
“The killing o'f a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder, according to the provisions of this article, shall be deemed manslaughter, and shall be punished by imprisonment in the State prison not exceeding twenty years, or imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars.” Sec. 5039 Rev. Gen. Stats. 1920.
“Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter.”' Sec. 5043 Rev. Gen. Stats. 1920.
In order to justify a homicide on the ground of self-defense under our statutes, there must be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there must be imminent ■danger (real or apparent) of such design being accom—
“A defendant to justify his acts on the ground of self defense must have used all reasonable means within his power and consistent with his own safety, to avoid danger and to avert the necessity of taking the- life of the 'deceased.” Stafford v. State, 50 Fla. 134, 39 South. Rep. 196; Snelling v. State, 49 Fla. 34, 37 South. Rep. 917; Owens v. State, 54 Fla. 383, 60 South. Rep. 340; Doke v. State, 71 Fla. 633, 71 South. Rep. 917. “And provided the defendant did not take the life of the deceased after all real or apparent necessity for doing so had ceased.” Peadon v. State, 46 Fla. 124, text 136, 35 South. Rep. 204; King v. State, 54 Fla. 47, 44 South. Rep. 941. There must have been not only the belief, but also reasonable ground for the accused to believe that, at the time of killing the deceased, he was in imminent or immediate danger of his. life or great bodily harm from the deceased, to excuse the homicide On the ground of self-defense. Wilson v. State, 30 Fla. 234, 11 South. Rep. 556.
Upon the subject of self defense, the question of whether the defendant was reasonably apprehensive of danger or great harm from the deceased is a question of fact to be gathered by the jury from all the circumstances in the case. Harris v. State, 75 Fla. 527, 78 South. Rep. 526; Ward v. State, 75 Fla. 736, 79 South. Rep. 699.
Where the testimony upon a charge of homicide is so strong and clear as to preclude the conclusion that the killing was excusable or justifiable, and 'that a verdict of guilty of manslaughter in the third degree is fully sustained by the evidence, the verdict should not be set aside upon the ground that the judge did not instruct the jury fully upon the question of justifiable or excusable homicide. Brown v. State, 18 Fla. 472.
Where the testimony is clearly sufficient to sustain the verdict, and it is evident that no jury could have been sustained by an error in an instruction given to the jury, the verdict will not be disturbed. Wooten v. State, 24 Fla. 335, 5 South. Rep. 39, 1 L. R. A. 819.
Alleged errors in giving or refusing charges or instructions, and in the admission or rejection of testimony which do not weaken the effect of the admitted testimony, and which do not reach the legality of the trial .itself will not be considered grounds for reversal where the evidence leaves no-room for reasonable doubt of the defendant’s guilt. Hopkins v. State, 52 Fla. 39, 42 South. Rep. 52.
Chapter 6223 Acts of 1911, Section 2812 Revised General Statutes 1920, as to harmless errors, merely enacted into law a rule of decision that in substance and effect had been theretofore observed by this court. The judicial rule and the statute each in effect forbids a reversal for errors that were rendered harmless by other matters in the proceedings or by the verdict or judgment in the cause.
The • judgment should not be reversed or a new trial granted in any case, civil or criminal, for errors in rulings upon admission or rejection of evidence, or for errors in giving or refusing charges, or for errors in any other matter of procedure or practice, unless it shall appear to the court from a consideration of the entire cause that such errors injuriously affect the substantial rights of. the complaining party. Nor should a judgment be reversed or a new trial granted on the ground that the verdict is not sustained by the evidence, unless it appears that there was no substantial evidence to support the finding, or that upon the whole evidence the verdict is clearly wrong, or that the jury were not governed by the evidence in making-their finding. Johnson v. State, 80 Fla. 61, 85 South. Rep. 155; Dixon v. State, 79 Fla. 586, 84 South. Rep. 541; Sandlin v. State, 76 Fla. 368, 79 South. Rep. 714; Crane v.
In this case it appears that there was on a road near the home of the deceased, an encounter between the deceased and four others who were jointly indicted for the murder of the deceased; that after the deceased’s gun was taken from him by his antagonists he called to his wife to bring his pistol from his house and that several shots were fired from the pistol at his antagonists by the deceased, and one or more shots were fired from shot guns by some of the antagonists, and one rifle shot was fired by the plaintiff in error W. II. Young at the deceased. The deceased was mortally wounded by a rifle shot in the back. The bullet “passed through the body from the rear to the front,” and. lodged “under the skin about two inches to the left of the right nipple.” This undisputed physical fact, taken with all the testimony, shows that the deceased was retreating from the encounter when he was fatally wounded by the shot admittedly fired by the plaintiff in error. If the deceased Avas retreating there could under the circumstances have been no reasonable ground for the accused to apprehend imminent danger of great personal injury from the deceased. The defendant belorv testified that when the deceased fired the last shot from his pistol he dropped his hand and turned his side towards the accused just as the accused fired the fatal shot. The jury in effect found on supporting testimony that the fatal
As the deceased was fatally shot in the back after he had ceased firing and had dropped his hand by his side and had turned from his antagonists, the testimony of- the defendant that he fired the fatal shot in self defense, when considered with all the evidence, does not tend to indicate that when the deceased was shot by the accused, the latter had “reasonable ground to apprehend a design” on the part of deceased “to commit a felony” on the accused or to do him “some great personal injury,”, and that there was “imminent danger of such design being accomplished,” as contemplated by the statute. Under these circumstances as shown by the evidence, an erroneous abstract charge that an accused “must satisfy the jury that the defense was necessary at the timé” &c., could not have harmed the defendant, because the deceased having been shot in the back the testimony of the defendant under the circumstances in evidence does not raise a reasonable doubt as to the unlawfulness of the homicide. The testimony clearly warrants a finding by the jury that there was no real or apparent danger of “great personal injury” to the accused by the deceased, when the accused fired the fatal shot, and that the defendant did not use all reasonable means within his power and consistent with his own safety to avoid danger and to avert the necessity of taking the life of the deceased and that the accused took the life of the deceased after all real and apparent necessity for doing so had ceased.
The testimony adduced to show justification in self defense (Sec. 5033 Rev. Gen. Stats. 1920), taken in connection with the entire evidence including the physical facts of the fatal injury, is not sufficient to raise a reasonable doubt of the guilt of the defendant of an unlawful horni
“The mere fact that technical error was committed by the trial court in some of its rulings may not be sufficient; the errors must have been harmful or prejudicial to the rights of the plaintiff in error. ’ ’ Danson v. State, 62 Fla. 29, 56 South. Rep. 667.
While the court charged the jury that “before a person can avail himself of the defense that he used a deadly weapon in the defense of his life and be justified, he “must satisfy the jury that the defense was necessary at the time” &e., the court also charged the jury: “Remember, it would be a violation of your oath as jurors and of your duty as citizens to convict accused persons on testimony which fails to convince you beyond a reasonable doubt of their guilt,” and that “a person charged with the commis
The charges are abstract and in the main correct.
In view of the entire evidence and of the charges taken as an entirety, it does not seem reasonable that the plaintiff in error was injured by the abstract statement in the charge first above quoted, that a defendant “must satisfy the jury ’ ’ that he acted in self defense.
The statutes of the State do not define the phrase “a reasonable doubt” or require a definition of it to be given to the jury when instructing them as to the nature of the proofs required for conviction in a criminal prosecution; and definitions formulated by the courts and given in charges to the jury, if considered at all by the jury, may tend to confuse and mislead rather than to enlighten and assist them in determininng the issues being tried. Certainly no harm could reasonably have resulted to the defendant in this case from a failure or a refusal of the court to give to the jury a definition of “ a reasonable doubt. ’ ’
Dissenting Opinion
Dissenting.
The introduction in evidence of the stenographic report, reduced to writing, of testimony of the physician who examined the body of the deceased, which was given by the witness at a former trial of the defendant and others jointly indicted with him, was error. Its admission
There was a request from defendant’s counsel to the court to give to the jury a charge defining the term “reasonable doubt.” The phrase “reasonable doubt” may not be susceptible of precise definition, but the definition contained in the charge requested has been approved by this court. The.trial court refused to give the requested charge. This refusal is assigned as error and the following authorities are relied on: Reeves v. State, 29 Fla. 527, 10 South. Rep. 901; Davis v. State, 46 Fla. 137, 35 South. Rep. 76.
In the latter case this court said: “The second instruction was a request for a definition of the words ‘reasonable doubt, ’ and was couched in the language approved by' this court in the ease of Lovett v. State, 30 Fla. 142, 11 South. Rep. 550, and also in Bassett v. State, 44 Fla. 12, 33 South. Rep. 262. The court did not in his charge give or attempt to give a definition in any form, nor was
The giving of the following charge is assigned as error: “A person may act upon appearances but when he does so act, he does so- at his own peril, and before a person can avail himself of the defense tliat he used a deadly weapon in defense of his life and be justified, he must satisfy the jury that the defense was necessary at the time and that he did all that he could to avoid it, and that it was necessary to protect his own life or to protect himself from such great bodily harm as would give him a reasonable apprehension that his life was in imminent danger.” (Italics supplied). This charge is clearly erroneous. It imposed upon the defendant the burden of establishing with a greater degree of certainty than the law requires the necessity of a resort to the means employed by him in defense of himself. Hathaway v. State, 32 Fla. 56, 13
In Lane v. State, supra, in considering a charge substantially the same as this, the court said: “The jury need not be satisfied. If the evidence raises a reasonable doubt it will be sufficient. Furthermore, if the circumstances arc such as to authorize a reasonably cautious man to believe his life to be in immediate danger, or that he was in immediate danger of receiving great personal injury, it will suffice, though an actual necessity to kill does not exist. The charge also conveys the idea that if a deadly weapon is used in defense of life the accused must satisfy the jury that the killing was necessary to protect life or to protect the slayer from such great bodily harm as would give him a reasonable apprehension that his life was in immediate danger. The statute justifies the killing when done under circumstances authorizing it to protect life or the slayer from great personal injury. The charge is clearly wrong, and after mature reflection we are of opinion that we cannot safely hold that its error was fully corrected by other instructions given, or that it was entirely harmless.”
On behalf of the State it is conceded that the refusal to give the requested charge defining “reasonable doubt” is error, but it is contended that in view of the evidence adduced and the verdict of manslaughter returned, the principle announced in the “Harmless Error” statute (§2812 Rev. Gen. Stats.) should be applied, and that “after an examination of the entire case,” unless it appear that the error complained of has resulted in a miscarriage of justice, the judgment should be affirmed.
' With respect to the erroneous charge given by the trial court, the position of the State is that this charge not hav
On behalf of the defendant it is contended that the two positions are inconsistent. The, argument is that under the authorities cited both errors are obvious; that to overcome the first the statute authorizing “an examination of the entire case” is invoked; that this “examination” discloses the erroneous charge given, notwithstanding the “error as to * . * . * procedure” by the defendant in not duly objecting thereto, and that if the statute is to be applied as it operates against the defendant, it should also be applied as it operates to his benefit. This argument, while ingenuous, is fallacious. It overlooks the express provision of the statute that an “examination of the entire ease ’ ’ is for the purpose of ascertaining 'whether the “error complained of” has resulted in a miscarriage of justice. Charges given may be “complained of” by being-excepted to when given or embodied in a motion for new trial. Steele v. State, 85 Fla. 57, 95 South. Rep. 299; Bynum v. State, 46 Fla. 142, 35 South. Rep. 65, §2700 Rev. Gen. Stats. Errors contained in charges given but not objected to are waived. Errors waived are not complained of.” The “Harmless Error” statute (§2812 Rev. Gen. Stats.) does not repeal Section 2700, Rev. Gen. Stats., nor abrogate established rules of procedure. It was not designed to extend the scope of review on writ of error. It does little, if any, more than enact into law a rule of decision long established in- this jurisdiction. This contention therefore fails.
The giving- of the erroneous charge not having been so objected to as to present the question here for review, cannot be considered. In view of other charges given and the evidence contained in the record, I do not regard the re
No harmful error having been made to appear, the judgment should be affirmed.