Anderson v. State

• Decision Date: 06 July 1938
• Citation: 182 So. 643,133 Fla. 63
• Parties: ANDERSON v. STATE.
• Court: Florida Supreme Court

182 So. 643

133 Fla. 63

ANDERSON v. STATE.

Florida Supreme Court

July 6, 1938

Rehearing Denied July 25, 1938.

Error to Circuit Court, Okeechobee County; Elwyn Thomas, Judge.

Aaron Anderson was convicted of murder in the second degree, and he brings error.

Affirmed.

COUNSEL G. C. Durrance, of Okeechobee, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.

OPINION

CHAPMAN, Justice.

This case is here on writ of error to the Circuit Court of Okeechobee County, Florida. On September 9, 1936, a Grand Jury of said County presented an indictment charging Aaron Anderson on July 1, 1936, with the killing of Emma Hartsfield in Okeechobee County, Florida. On May 10, 1937, at a special term of the said Circuit Court the said Aaron Anderson was arraigned on said indictment and entered or caused to be entered thereto a plea of not guilty. On the 20th day of May 1937, the cause was tried before a jury and after hearing all the evidence, argument of counsel and charge of the court upon the law of the case, the jury returned a verdict against said Aaron Anderson of murder in the second degree. He was by the lower court sentenced to the State Penitentiary at hard labor for a period of twenty years. He has perfected his appeal to this Court and has assigned a number of errors for the reversal of the said judgment entered against him.

One of the first assignments here is that the lower court erred in admitting into evidence, over the defendant's objection the dying declaration of Emma Hartsfield. The evidence shows that Claude Simmons, the Sheriff of Okeechobee County reached the scene of the shooting between 10 and 20 minutes after Emma Hartsfield was shot. He found her lying on an old bench and upon examination found that she had been shot, and that the ball went into her body, penetrated her liver and passed out at her back. She was in considerable pain and when he asked her what was the matter, she said: "Mr. Claude, he shot me.' I said, 'who shot you?' and she said: 'Aaron, and he killed me, Mr. Claude, he killed me, I am dying." The Sheriff asked: 'What did he shoot you for, Emma? She caught her breath a little bit and said: 'He shot me for nothing, he shot me for nothing, for not a thing in the world * * *'. He called me off and said if I wouldn't go with him I wouldn't go with any one else * * * and he pointed with his pistol and it snapped, and I said 'Aaron don't shoot me, don't shoot me, I will get Mr. Claude',' and she says she backed off a few feet from him and the gun fired.' She died fourteen days later as shown by the evidence.

In the case of Johnson v. State, 113 Fla. 461, 152 So. 176, this Court had before it for consideration the admissibility of a dying declaration and said (page 178):

'Whether a sufficient and proper predicate has been laid for the admission in evidence of a dying declaration is a primary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of the trial court thereon is entitled to great weight; every presumption being in favor of its correctness. Such ruling is subject to appellate review, but it will not be disturbed unless it clearly appears to be erroneous. That declarant, at the time of his dying declaration, entertained no hope of recovery, and that he knew and appreciated his condition as being that of an approach to certain and imminent death may be gathered from proof of the surrounding circumstances, as well as from all the circumstances of the case. It is not indispensable that deceased declare totidem verbis that he entertains no hope whatever of recovery, and realizes that death is imminent and unavoidable, where the understood nature of his injury is such as to establish beyond all reasonable doubt that declarant must have known and believed he was talking as a man on the threshold of mortal dissolution. Sealy v. State, 89 Fla. 439, 105 So. 137; Richardson v. State, 80 Fla. 634, 86 So. 619; Gardner v. State, 55 Fla. 25, 45 So. 1028; Bennett v. State, 66 Fla. 369, 63 So. 842; Folks v. State, 85 Fla. 238, 95 So. 619; Copeland v. State, 58 Fla. 26, 50 So. 621; Malone v. State, 72 Fla. 28, 72 So. 415.'

There was no error in admitting into evidence for consideration of the jury the dying declaration of Emma Hartsfield, supra, over the objection of counsel for the defendant.

It is next contended that the lower court erred in overruling the defendant's motion for a new trial and the grounds thereof to the effect that the verdict was contrary to the evidence, and not supported by the evidence. The evidence in the case, as shown by the record, was conflicting and presented purely a question to be decided by the jury. Where there is evidence from which all the essential elements of a crime may legally have been found, and it does not appear that the jury was influenced by considerations other than the evidence, the order of the trial court refusing to grant a new trial on account of the insufficiency of the evidence, or because the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions for the correctness of the verdict, the preponderance of the evidence against the...