Alford v. State

• Decision Date: 05 April 1904
• Citation: 47 Fla. 1,36 So. 436
• Parties: ALFORD v. STATE.
• Court: Florida Supreme Court

36 So. 436

47 Fla. 1

ALFORD v. STATE.

Florida Supreme Court

April 5, 1904

In Banc. Error to Criminal Court of Record, Escambia County; E D. Beggs, Judge.

George Alford was convicted of arson, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Whether testimony as to the character of a witness for truth and veracity is or is not too remote to be competent evidence is to be determined by the trial judge in the exercise of a reasonable discretion.

2. Where a witness for the state was of somewhat nomadic habits of life, and the defendant introduced witnesses to show the bad reputation of the state witness for truth and veracity and the defendant's witnesses show a reasonable acquaintance with the reputation of such state witness for a number of years before and up to the time of the trial by having lived a part of the time in the vicinity of such state witness, and having visited other neighborhoods in which he has lived, and there heard his reputation for truth and veracity discussed by persons living in such neighborhoods such impeaching testimony on the part of the defendant is competent.

3. Before a defendant can introduce testimony to impeach a state witness, by showing that such witness had made statements inconsistent with or contradictory of his testimony, a proper predicate for such impeaching testimony must be laid; but where the purpose is to show the animus of a state witness towards a defendant--that is to say, the bias or hostility of such state witness, his interest in the cause, or his motives--it is not essential that a predicate should be laid in order that testimony may be introduced as to such bias hostility, interest, or motives.

4. Where a state witness shows that he had had a reasonable opportunity to become acquainted with the tracks or footprints of the defendant, it is competent for such witness to testify that, in his opinion, certain tracks or footprints which he saw near the scene of the alleged crime immediately after it occurred were those of the defendant, because the matter of such testimony cannot otherwise be reproduced, or made palpable to the jury.

5. The opinion of a state witness that a person seen by her near the scene of the crime was the defendant is admissible testimony where it appears that such witness bases her opinion upon her own knowledge of or acquaintance with the defendant; but such testimony is not competent if it appears from her testimony that she may have based her opinion upon other grounds than her knowledge of the defendant, and her recognition and identification of him from seeing him near the scene of the crime.

6. A witness may be permitted to date a fact which he knows by relating it to the time when he heard of another fact, and in so doing may state not only that he heard something, but what that something was, in order to let the jury see what reason he had to observe and remember; but the hearsay, though he repeats it on oath, is not evidence either of the occurrence or of the date of the occurrence which it purports to affirm.

7. A motion to strike out the whole of the testimony of a witness when a part of it is competent is properly overruled.

8. Where, on cross-examination, defendant's counsel asked a state witness to whom she had talked among the witnesses for the state, and the question, on objection, was overruled, but the court stated that he would allow counsel to ask the witness if she had talked with any particular state witness, the ruling was not erroneous.

9. Where there are two counts in an information, and the defendant moves the court to require the county solicitor to elect upon which of the two counts he would ask for a conviction, and the motion is overruled, and the defendant is tried and convicted on one count and acquitted as to the other, it is not necessary for this court to pass on the propriety of the ruling of the trial court, where the judgment of conviction is reversed on other grounds. (See authorities cited in opinion.)

COUNSEL C. M. Jones and Chas. M. Coston, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

HOCKER J.

At the September term, 1902, of the criminal court of record of Escambia county, an information was filed by the county solicitor against George Alford and Jack Elsterman, charging, in substance, in the first count, that on the 7th of August, 1902, they did willfully and maliciously set fire to and burn a certain building, to wit, a dwelling house belonging to E. G. Creighton, and occupied as a dwelling by George Kelly. In the second count they are charged with setting fire to and burning a building, to wit, a dwelling house belonging to A. C. Berry, and occupied as a dwelling by George Kelly. At the November term, 1902, of the court, the defendants were tried, Jack Elsterman was acquitted, and George Alford was convicted under the second count, and sentenced to the penitentiary for 15 years. A writ of error was sued out from this sentence and judgment on the 17th day of July, 1903, returnable to the January term, 1904, of this court.

The first and second assignments of error are based on the striking of the testimony of W. L. Nelms and of the testimony of Dan Nelms, witnesses for the plaintiff in error, as to the reputation for truth and veracity of Joseph Huggins, a witness for the state. Joseph Huggins had given important testimony for the state against Alford, and the plaintiff in error introduced as a witness W. L. Nelms, who testified in chief as follows: 'I have lived in Escambia county, Florida, about forty-six years, near Muscogee. I have known Joseph Huggins twenty years. I know his general reputation in the community in which he lives for truth and veracity. It is bad. I would not believe him under oath.' On cross-examination he testified: 'I heard his kinpeople, Mr. Simmons, Jeff. Grant, and lots of other people around Muscogee discuss his reputation. Huggins has lived near Brents about a year. Before that he lived at Molino Mills two years. Before he lived at Molino Mills he lived at Muscogee. I lived by him at Muscogee a while. I heard Mr. Bryars discuss his general reputation at Brents. Also heard my brother and Mr. Cooper discuss his general reputation at Molino. It was about a year ago that I heard his general reputation discussed by Cooper.' At the conclusion of this testimony the county solicitor moved to strike out the testimony of said witness in reference to general reputation of Huggins on the ground that knowledge of same was too remote, which motion was sustained, and the ruling excepted to and assigned as error.

Dan Nelms testified in chief for the plaintiff in error as follows: 'I have known Joseph Huggins about twenty-two years. He lived in a house with me two or three months at Cantonement. He lived all around the country. I knew him when he lived at Molino. He lives near Brents Station. I know his general reputation for truth and veracity in this community. It is bad. I would not believe him under oath.' On cross-examination he said: 'I live at Stockton, Alabama, and have lived there for the past six years. I have not seen Huggins in the last six years, but during the time mentioned, upon an average of once or twice a month, I visited Escambia county. During this time I have heard his general reputation discussed by different parties; some who lived in the neighborhood of Huggins.' At the conclusion of said testimony the county solicitor moved to strike out all of the testimony of said witness referring to general reputation of Huggins upon the ground that knowledge of the same by witness is not sufficient, which motion was sustained, the ruling excepted to and assigned as error.

Whether testimony as to the character of a witness for truth and veracity is or is not too remote to be competent evidence is to be determined by the trial judge, in the exercise of a reasonable discretion. In the case of Dupree v. State. 33 Ala. 380, 73 Am. Dec. 422, it is said: 'The witnesses by whom it was proposed to show the character of the accused had known him for eight or ten years, and were acquainted with his character. This was sufficient to qualify them to testify as to his character notwithstanding they may have resided more than twenty miles from him. Residence in the immediate vicinity of the person whose character is the subject of investigation is not an indispensable qualification of a witness to testify as to the character. Such a remoteness of residence would not prove that the witness did not know what the character was, and therefore would not disqualify him to testify on the subject.' It is said in Gillett on Indirect and Collateral Evidence, § 95, p. 145: 'If there is evidence that the general reputation of a witness for truth and veracity at the time of the trial is bad, then it is competent to go back of that time, and fortify the prior evidence by proof that such reputation at a considerable time before had also been bad.' 5 Am. & Eng. Ency. Law (2d Ed.) 884. In the case of Brown v. Perez, 89 Tex. 282, 34 S.W. 725, there was testimony tending to impeach a witness, one Garza, by witnesses who had not seen him for many years. Garza went to Mexico in 1866, returned to Texas in 1874, again left for Mexico in 1878, returned to Texas in 1883, went to Mexico in 1892, and returned to Texas in about six months afterwards, where he subsequently remained. Garza proved by another witness a good reputation for 50 years. The court below refused to strike out the evidence impeaching Garza, and the appellate court reviews the law in an able opinion. It says: 'Upon authority and sound principles, we think it may safely be said that where the evidence of a witness is such that it fairly raises the issue of his veracity, or where the...