Weightnovel v. State

• Decision Date: 19 December 1903
• Citation: 46 Fla. 1,35 So. 856
• Parties: WEIGHTNOVEL v. STATE.
• Court: Florida Supreme Court

35 So. 856

46 Fla. 1

WEIGHTNOVEL v. STATE.

Florida Supreme Court, Division A.

December 19, 1903

Error to Criminal Court of Record, Hillsborough County; W. S Graham, Judge.

Frederick N. Weightnovel was convicted of manslaughter, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An information that charges that the named defendant, 'with force and arms, at and in the county of Hillsborough and state aforesaid, in and upon one Irene Randall, did then and there unlawfully, feloniously, and willfully make an assault and did then and there thrust and strike a certain instrument, a more particular description of which instrument is to the solicitor aforesaid unknown, which he, the said Frederick N. Weighmovel, then and there held in his right hand, up and into the body and womb of one Irene Randall with the criminal intent then and there to cause the said Irene Randall to miscarry, the same not being then and there necessary to preserve the life of the said Irene Randall, nor had two physicians advised the same to be necessary to preserve the life of the said Irene Randall, thereby them and there inflicting on the said Irene Randall, in and about her womb and other internal parts, certain mortal bruises wounds, and lacerations, and creating in the said Irene Randall a mortal sickness and feebleness of body, of which mortal bruises, wounds, lacerations, sickness, and feebleness of body the said Irene Randall did then and there languish, and thence continually languished until, on the twelfth day of June in the year of our Lord one thousand nine hundred and two, the said Irene Randall did then and there die,' is sufficient to charge the crime of manslaughter under our general statute defining manslaughter (section 2384, Rev. St. 1892); and it sufficiently charges the person slain to have been a woman in its use of the pronoun 'her,' and in the female name it assigns to her, and in its allegation that the wounds were inflicted on the 'womb.'

2. Declarations of the deceased prior to her death, relative to matters pertinent to the issues on trial, that tend to show the defendant's guilt, are admissible in evidence when such declarations were made in the presence and hearing of the defendant.

3. Declarations of the deceased, not made in the presence of the accused, relative to past transactions, and that are not made under circumstances rendering them admissible as dying declarations, are hearsay, and not admissible as evidence.

4. The deceased, shortly after her arrival at defendant's house, where she died, and prior to the performance of any criminal operation on her for the procurement of a miscarriage, told a witness to telegraph to a distant point for her trunk, and that she was going to remain at the defendant's place to be treated and to have her child removed from her. Held, that this evidence was part of the res gestae, and was admissible though not made in defendant's presence, not for the purpose of proving the substantive fact that the defendant committed the crime, but for the purpose of showing willingness on the part of the deceased to have a criminal operation performed on herself, and of the existence of an opportunity for the defendant to perform it.

5. Declarations of the deceased that would not be admissible in evidence unless made in the presence and hearing of the accused should be clearly and satisfactorily shown to have been made in his presence and hearing before being admitted, and the fact as to whether they were so made in his presence and hearing is a preliminary one for the court, and not for the jury, to decide before their admission.

6. Evidence that tends to show a disposition on the part of the accused to conceal the crime and to estop public inquiry is admissible.

7. Since the adoption of our Revised Statutes in 1892, the sealing of charges by trial judges is no longer required. Trial judges should, in compliance with the statute, officially sign the instructions, but, where there is no complaint or exception against their failure to do so until after verdict, the irregularity is waived, and is not available on writ of error.

8. The correct and better practice is for trial judges to designate by number each separate charge.

9. Where there is no other evidence in the record of the truth or existence of an asserted fact than its assertion as a fact in a motion for new trial, it cannot be considered by an appellate court.

COUNSEL

M. Henry Cohen and Thomas Palmer, for plaintiff in error.

J. B. Whitfield, Atty. Gen., for the State.

OPINION

TAYLOR C.J.

The plaintiff in error was tried, convicted, and sentenced in the criminal court of record for Hillsborough county in January, 1903, upon an information filed by the county solicitor, of the crime of manslaughter, and seeks reversal here by writ of error. The information contains two counts, but the defendant was formally acquitted of the charge laid in the second count, so that said second count is entirely eliminated from the case.

The first count, upon which the conviction was had, omitting its formal commencement, is as follows: 'That Frederick N. Weightnovel, late of the county of Hillsborough aforesaid, in the state aforesaid, on the sixth day of June, in the year of our Lord one thousand nine hundred and two, with force and arms, at and in the county of Hillsborough aforesaid, and state aforesaid, in and upon one Irene Randall, did then and there unlawfully, feloniously, and willfully make an assault, and did then and there thrust and strike a certain instrument, a more particular description of which instrument is to the said Frank M. Simonton, solicitor aforesaid, unknown, which he, the said Frederick N. Weightnovel, then and there held in his right hand, up and into the body and womb of one Irene Randall, with the criminal intent then and there to cause the said Irene Randall to miscarry, the same not being then and there necessary to preserve the life of the said Irene Randall, nor had two physicians advised the same to be necessary to preserve the life of the said Irene Randall, thereby then and there inflicting on the said Irene Randall, in and about her womb and other internal parts, certain mortal bruises, wounds, and lacerations, and creating in the said Irene Randall a mortal sickness and feebleness of body, of which mortal bruises, wounds, lacerations, sickness, and feebleness of body the said Irene Randall did then and there languish, and thence continually languished, until on the 12th day of June in the year of our Lord one thousand nine hundred and two, the said Irene Randall did then and there die. And so the said Frederick N. Weightnovel did, in manner and form aforesaid, feloniously and unlawfully kill and slay the said Irene Randall, against the form of the statute in such cases made and provided,' etc.

The first, second, third, fifth, sixth, seventh, and ninth assignments of error are as follows, the fourth and eighth assignments being expressly abandoned:

'(1) That the first count of the information in this cause upon which he was convicted is insufficient in this: that the information does not properly describe the offense of which the plaintiff in error was convicted.

'(2) That the said count of said information is insufficient and illegal, in that it charges the plaintiff in error with the crime of manslaughter in the alleged killing of one Irene Randall while attempting to perform an abortion or miscarriage upon her, although the statutes of this state provide a specific and adequate punishment for the crime of abortion, and the plaintiff in error cannot be legally tried and convicted of the crime of manslaughter upon an information alleging the death of a woman as the result of an abortion.

'(3) That the said count of said information is vague and indefinite, and does not charge the commission of any offense, in that it alleges an assault under such circumstances which prove conclusively that the person assaulted consented thereto, and further alleges that the plaintiff in error assaulted the said Irene Randall with specific intent to cause the said Irene Randall to miscarry, which allegation can form no part of a charge of assault under the laws of this state.'

'(5) That the said count of said information is illegal and defective in that it alleges that the operation performed upon Irene Randall by the plaintiff in error was not necessary to preserve her life, and was not advised by two physicians as being so necessary to preserve her life, both of which allegations are improper and illegal, and is totally at variance with the charge of manslaughter.

'(6) That the first said count of said information is bad for duplicity, in that it alleges the ingredients of two distinct crimes under the statute of Florida, to wit, manslaughter and the crime of abortion.

'(7) That the said first count of said information is so vague, indefinite, and uncertain as to not put the plaintiff in error on notice of the charge he was expected to meet, in that the said count alleges that the plaintiff in error assaulted the said Irene Randall with an instrument, for the purpose of causing the said Irene Randall to miscarry, and does not allege of what she was expected to miscarry, or that she was in any condition to miscarry at all, nor does the said count allege that she was a woman, or that she was pregnant.'

'(9) That the conviction of the plaintiff in error upon the first count of said information was improper and illegal, in that the count does not make or constitute a charge of the violation of any of the laws of the state of Florida.'

These assignments do not expressly complain of any ruling made by the court below in the case, but, in the form in which they are...