Anthony v. State

• Decision Date: 18 March 1902
• Citation: 44 Fla. 1,32 So. 818
• Parties: ANTHONY v. STATE.
• Court: Florida Supreme Court

32 So. 818

44 Fla. 1

ANTHONY v. STATE.

Florida Supreme Court

March 18, 1902

Error to criminal court of record, Duval county; John L. Doggett Judge.

M. Q Anthony was convicted of receiving stolen property, and brings error.Affirmed.

Syllabus by the Court

SYLLABUS

1.A question as to the admissibility of evidence cannot properly be raised by an assignment of error that the verdict is contrary to law.

2.Under an information charging defendant with receiving stolen property, acts and declarations of the thief made at the time of, and in connection with, and tending to prove, the larceny, are admissible.

3.An objection made to evidence as a whole, part of which is competent, is properly overruled

4.It is within the discretion of the trial court to permit leading questions, and the exercise of that discretion is not reviewable on writ of error.

5.A trial court should not permit the introduction of evidence of a defendant's confession until sufficient proof of the corpus delicti is first given, but if the confession be admitted without such proof, and additional evidence upon that subject is a afterwards introduced, independent of the confession, which would have justified the admission of such confession, the error in prematurely admitting it will be cured.

6.The statement of a codefendant made subsequent to an alleged offense is admissible in evidence against a defendant on trial, where it is shown that the statement was made in his presence and expressly assented to by him.

7.On the trial of a person charged with receiving stolen property testimony on the part of the state tending to prove an arrangement or plan made between the alleged thief and the defendant, whereby the thief was to steal and the defendant was to receive from him a certain kind of property, as the defendant should need it, is admissible, where the testimony tends to show that the particular property charged in the indictment was received by defendant in pursuance of such arrangement or plan.

8.After a criminal case has been closed on both sides, and the argument of counsel is being made, it is within the sound discretion of the trial court to permit the state to introduce additional evidence in furtherance of justice.

9 An accused has the right to have the trial court instruct the jury, on request, that the testimony of an accomplice, as well as his own confessions, while proper to be considered should be received with great caution, but he has no right to require the court to go beyond the expression of this caution in calling attention to the nature or weight of such evidence.

COUNSEL

Barrs & Bryan, for plaintiff in error.

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

OPINION

PER CURIAM.

This case was referred by the court to its commissioners for investigation, who have reported that the judgment should be affirmed.After due consideration, the court concurs in this result.

Information was filed in the criminal court of record for Duval county against plaintiff in error, Thomas Moore, and Henry Sloan the first count thereof alleging that said parties on the 20th day of April, 1901, in Duval county, state of Florida, 'two hundred and eighteen pounds of pork loin, of the value of twelve cents per pound, all of the value of twenty-six dollars and sixteen cents, the property, goods, and chattels of Armour and Company, a corporation doing business in the state of Florida, being found feloniously did steal, take, and carry away.'

The second court charges that the same parties, on same date, feloniously did have, receive, buy, and aid in the concealment of the same property alleged to have been stolen, they then well knowing that said property was then and there stolen, contrary to the form of the statute, etc.

Plaintiff in error was tried separately, and found guilty as charged in the second count of the information, and from the sentence of the court sued out writ of error.

The disposition of the first and third assignments of error will be postponed until the other assignments are first considered.The second assignment is that the verdict is contrary to the law, and it is contended under it that there was not sufficient evidence to permit the alleged confession of the accused to go to the jury, and that the alleged confession of Tom Moore should not have been received in evidence against defendant.

The question of the admissibility of evidence cannot properly be raised by an assignment that the verdict is contrary to law.Objections should be made to the admission of evidence when offered, and if overruled an exception should be taken, and the question of admissibility should be presented on an assignment based upon the ruling of the court admitting the evidence.Other assignments made by plaintiff in error relate to the admission of the alleged confessions of the accused, and also of Tom Moore, and such matters will come up under such assignments.

The fourth assignment is that the court improperly denied defendant's motion to strike out that portion of the testimony of Henry Sloan detailing a conversation between witness and Tom Moore.It is contended that it was hearsay evidence, and should have been excluded.Under the Second count of the information it was incumbent upon the state to prove--First, that the property described therein, or part of it, was stolen; and, second, that the accused, knowing it to have been stolen, bought, received, or knowingly aided in its concealment.The theory of the prosecution was that Thomas Moore stole the property, and plaintiff in error, knowing it to have been stolen, received it.Sloan, a drayman, was introduced for the prosecution, and stated that on a Tuesday morning Moore told him he had a box that he(Moore) wanted him to take to Anthony.Witness told him all right, and took it out.Witness further stated that he went back of Armour's establishment on that Tuesday morning, and got some meat, and it was taken from him by an officer on his way out to Anthony's.Witness also stated that some more meat was carried out there on the Saturday preceding, and was asked where he got it.An objection to this was made on the ground that any conversation between Moore and witness was incompetent; and also a motion was made to strike out the testimony of the witness already given as to what Moore told him.The court reserved its decision to see the connection the state would make.No grounds of objection were stated in the motion and no exception taken to the ruling.The witness then stated that on the Saturday mentioned Moore told him to go round to the back of Armour & Co.'s place, and there would be a box there, and he(Moore) went through, and directed witness to take it.Motion was made to strike out this answer on the ground that it was hearsay, and an exception was taken to the ruling denying the motion.Witness further stated that he went around to the back of the place, and Moore gave him the meat, and told him to take it to Anthony, and that he did so.A similar motion, ruling, and exception appear.At the conclusion of witness' examination counsel for the accused made a motion to strike out of the testimony of the witness that portion detailing the conversations between witness and Moore on the ground that it was hearsay.This motion was denied, and excepted to by the accused.It appeared from the evidence that the box taken from the business place of Armour & Co. contained pork loins, and also that Tom Moore was an employé of that company in its freshmeat department, but without any authority to sell meat.It was competent for the state to put in evidence acts and declarations of Moore tending to prove larceny by him of the property described in the information.This was a part of the case which the state had to prove in order to secure a conviction, and all that Moore said and did in the immediate connection of taking became a part of the res gestae.State v. Smith,37 Mo. 58;State v. Sweeten,75 Mo.App. 127;Copperman v. People,56 N.Y. 591;Coleman v. Same,58 N.Y. 555.The objection to all that part of Sloan's testimony detailing acts and declarations of Moore in reference to the asportation of the pork loins on the Saturday, and that went into the possession of the accused, was therefore without foundation, and properly overruled.There was no ground of objection stated in the first motion to exclude what was said and done in reference to the meat on Tuesday.In the subsequent motion to exclude all conversations of Moore had with Sloan the ground is hearsay, but it included the conversations had on Saturday as well as on Tuesday, and we have seen that those on Saturday were properly admitted in evidence.The objection finally made included all the evidence, and as part of it was competent we need not examine the propriety of admitting the other.Richard v. State,42 Fla. 528, 29 So. 413.

The fifth assignment is that the court erred in overruling the objection of defendant to the following question...