Adams v. State

• Citation: 15 So. 905,34 Fla. 185
• Court: United States State Supreme Court of Florida
• Decision Date: 31 July 1894
• Parties: ADAMS v. STATE.

15 So. 905

34 Fla. 185

ADAMS v. STATE.

Florida Supreme Court

July 31, 1894

Error to circuit court, Columbia county; John F. White, Judge.

William Adams was convicted of murder, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Section 1093, Rev. St., providing as follows: 'When a jury, after due and thorough deliberation upon any cause shall return into court without having agreed on a verdict the court may explain to them anew the law applicable to the case, and may send them out again for further deliberation but if they shall return a second time without having agreed on a verdict, they shall not be sent out again without their consent, unless they shall ask from the court some further explanation of the law,'--is applicable alike to both civil and criminal cases, and confers upon juries the legal right to be discharged from any cause when, after due and thorough deliberation, they come into court for the second time, after being recharged, and avow their inability to agree upon a verdict, without requesting further explanation of the law. The statute is designed to put a limitation upon the right of the court to detain a jury indefinitely in any cause after it is ascertained that, on due and thorough deliberation, it is impossible for them to agree upon a verdict. A plea interposed by the defendant in a criminal cause, claiming an abatement of the prosecution on the ground of former jeopardy, that shows upon its face that the discharge of the jury before verdict, at the trial urged as the former jeopardy, was done in conformity to the provisions of this statute, is properly overruled upon demurrer thereto particularly where the same plea shows that, before their discharge, the jury reported some of their number to be sick.

2. Where a little child who, at 3 1/2 years of age, was a bystanding spectator of a homicide, proves, nearly two years subsequent to the occurrence, not to be possessed of sufficient comprehension and intelligence to be competent then to testify as a witness, its exclamations and utterances at the time of the homicide, even though they may have been part of the res gestae, are not admissible in evidence through the mouth of a third person who heard such exclamations at the time; and this upon the ground that a child of such tender years, so lacking in intelligence and discrimination, cannot comprehend passing events with anything like such accuracy as to render its exclamations or observations in reference thereto at all reliable or admissible as evidence.

3. Under section 1101, Rev. St., that permits a party producing a witness to impeach him when he proves adverse, a witness cannot be impeached who simply fails to testify to beneficial facts that were expected from him, but he must become adverse by giving evidence that is prejudicial to the cause of the party producing him. When a party's witness surprises him by not only failing to testify to beneficial facts expected of him, but by giving harmful evidence, that is contrary to what was expected, then, as is the purpose of this law, he is permitted to counteract the prejudicial effect of such adverse testimony from his own witness, by proving that he has made statements on other occasions that are inconsistent with such adverse evidence.

4. Even where a party's own witness is properly impeached, under this statute, by proof of conflicting statements made on other occasions, the conflicting statements as made to and detailed by the impeaching witness should not be considered as substantive evidence in support of the party's cause who produced such impeached witness, but has weight only for the purpose of counteracting or annulling the harmful effects of the adverse testimony given in the cause by the impeached witness that is inconsistent with his statements shown to have been made on other occasions. It was never the purpose of the law to permit a party to produce a witness, and upon his simple failure to testify to expected facts, without giving prejudicial evidence, to permit another witness to be produced, ostensibly for the purpose of impeachment, but in reality to introduce into the cause, as substantive independent evidence, the hearsay conflicting statements of the impeached witness alleged to have been made on other occasions.

COUNSEL Blackwell & Rees and A. J. Henry, for plaintiff in error.

W. B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR J.

This is the second appearance of this case upon writ of error before this court. 28 Fla. 511, 10 So. 106. After the reversal of the former conviction, the plaintiff in error was again tried at the fall term, 1893, of the circuit court for Columbia county, upon the same indictment, and was convicted of murder in the first degree, with recommendations to mercy, and sentenced to imprisonment in the penitentiary for life. From this latter conviction he takes this his second writ of error.

Before going into the last trial, the defendant interposed the following plea of 'former jeopardy:' 'That the said state of Florida is barred and precluded from further prosecuting him herein, because he says he has once been in jeopardy under a former trial of said cause, for that heretofore, to wit, on the 29th day of November, A. D. 1892, at the regular fall term of this court, duly organized and held according to law, said cause came on for trial; and, this defendant having been arraigned and pleaded not guilty, a jury was duly chosen, impaneled, and sworn according to law. That the state's attorney, prosecuting for said state of Florida, to maintain the issues in said cause, produced the witnesses in behalf of said state, who were duly sworn and testified and gave evidence in said cause before said jury; and the said state's attorney, prosecuting in behalf of said state, as aforesaid, having concluded the testimony for and in behalf of said state, this defendant produced witnesses on his behalf, who were duly sworn, and who testified and gave evidence in behalf of this defendant, before said jury and after said evidence was closed on behalf of the state and the defendant; and, after argument of counsel both on behalf of the state and the defendant, the court delivered in writing its charge to the jury, and submitted to the said jury the said cause; and thereupon the said jury retired from said court, in charge of their bailiff, to their room, under instructions of the court, at 5 o'clock p. m., on the 7th day of December, A. D. 1892. That at 6 o'clock, on the same evening, the jury were escorted by their bailiff to supper 100 yards from the court house. At 7:30 o'clock the jury retired to their room, at which time bedding was carried into said room, by leave of and in the presence of the court, for the use of the jury. At 7 o'clock the next morning thereafter, the jury were escorted by their bailiff to breakfast, and at 8 o'clock the jury retired to their room. At 9 o'clock on said morning, said jury came into court, and asked the court for the written charge, which was delivered to the jury, and they retired to their room. At 11 o'clock on the same morning, the jury came into court, and stated to the court that they could not agree. Then the court did not explain to them anew the law applicable to the case, but sent them back without so doing. At 3 o'clock p. m., on the same day, said jury came into court again, and stated to the court that they could not agree, and further stated that three of the jurymen were sick, and that several others were worn out; whereupon the court discharged said jury, against the consent of the defendant, and without any good and sufficient cause. That said jury was discharged in the afternoon of the 8th day of December, 1892, and said term of court did not expire by operation of law until the 12th day of December, 1892; whereupon the defendant prays the judgment of this court that said state of Florida is barred and precluded from further prosecuting this defendant for said charge of felony.' To this plea the state interposed a demurrer that was sustained by the court.

The ruling upon this demurrer is assigned as error. A very strict rule was formerly applied prohibiting the discharge of a jury in a capital case, without the prisoner's consent, before an agreement upon a verdict; many of the courts holding that where they were thus discharged, simply because of their inability to agree upon a verdict, it constituted a bar to any further prosecution for the offense. The absurdity of this doctrine, however, afterwards became generally apparent, and the much-relaxed and far more reasonable rule prevailed that when, after a reasonable confinement and after full instructions, the jury avow an utter inability to come to an agreement in respect to their verdict, the judge, in the exercise of a sound discretion, might discharge them, and that such discharge would not operate as a bar to further prosecution; and it is further held that the necessity for the discharge of the jury, whatever it may be, must appear upon the record, and it must be adjudged by the court, from proper evidence, that such necessity existed which made a discharge of the jury imperatively necessary. Proff. Jury, §§ 484-491, inclusive, and citations.

These rules have been further relaxed here by the following provisions of our statute: 'When a jury, after due and thorough deliberation upon any cause, shall return into court without having agreed on a verdict, the court may explain to them anew the law applicable to the case, and may send them out again for further deliberation; but if they shall return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they shall ask from the court some further explanation of the...