Baker v. State

• Decision Date: 15 August 1892
• Parties: BAKER v. STATE.
• Court: Florida Supreme Court

11 So. 492

30 Fla. 41

BAKER v. STATE.

Florida Supreme Court

August 15, 1892

Error to circuit court, Hillsborough county; H. L. MITCHELL, Judge.

Abner G. Baker was convicted of manslaughter in the fourth degree and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. A state witness was asked on his cross-examination who aided him in making the internal examination of the deceased, and replied that Dr. Wall did so; and was then asked, 'Who requested you and Dr. Wall to do so?' and replied 'I think it was yourself.' Counsel for the state thereupon objected, and inquired what was the object of this; whereupon the defendant's counsel objected, and, the court sustaining the objection, he excepted to the ruling. Held, in the absence of any showing to the trial judge of the 'object,' not error.

2. A question was objected to, and the objection sustained, but subsequently the question was answered, in effect, by the same witness. Held, that any error in the ruling was cured.

3. Whereas, an expert may not be interrogated upon an hypothesis having no foundation in the evidence, it is yet not necessary that the hypothetical case put to him should be an exact reproduction of the evidence, or an accurate presentation of what has been proved. Counsel may present an hypothetical case in accordance with any reasonable theory of the effect of the evidence; and, if the jury find that the facts on which his hypothesis or theory of the effect of the evidence is based are not proved, the answer of the expert necessarily falls with the hypothesis.

4. Where a statement made by counsel in argument is objected to by opposing counsel, who asks permission to be heard, and the trial court refuses to hear the objection, and directs the opposing counsel to take his seat, the appellate court will not review the action of the trial court, in the absence of any showing of what the statement objected to was, but will presume that there was nothing objectionable in the statement, and that the trial court acted rightly

5. The fact that it could not reasonably have occurred to the defendant, or did not occur to him, that the death of the deceased was a reasonable or probable result of the former's assault, does not prevent a conviction of manslaughter in the fourth degree.

6. Deceased was lying upon a bed in his room after dinner, when defendant, entering, asked him if he owed him anything, and deceased replied that he did. Thereupon defendant cursed him and struck him, while he was lying on his bed on his side with his head raised about four inches above the pillow, two blows in the face, which blows knocked a piece of skin off the cheek, and caused one of his lips to be cut on the inner side for an inch or three quarters, but not extending through it. Defendant then left the room, and deceased was found to be in a dying condition, and died without rallying. A post mortem examination discovered a rupture of blood vessels and a large quantity of blood at the base of the brain, and also slight evidence of disease in the valves of the heart, but not sufficient to cause death. The deceased had been on a spree the night before, and had also taken several glasses of beer on the morning of the fatal day, and had then complained of pain at the base of his brain, and had water poured on it. The physicians who made the post mortem examination, they alone being examined as experts, were of the opinion that the stated effusion of blood was the cause of death, but neither stated what produced the rupture. One of them though it very improbable that the blows had anything to do with it, but would not say positively that they had nothing to do with it and the other, while he though it very improbable that the blows, of themselves, produced it, yet expressed views which support the theory that they may indirectly, or through excitement causing accelerated heart action, have produced it. The verdict was guilty of manslaughter in the fourth degree. Held, that the testimony sustained, beyond a reasonable doubt, the conclusion that death was produced or hastened by the assault.

7. Where a judge charges the jury that the state must prove that the defendant assaulted the deceased, and that the latter's death was caused or hastened by the assault alleged to have been committed upon him by the defendant, the jury must be given the credit of understanding that the judge was speaking of the assault testified to by the witnesses and of so applying the charge; and we cannot impute to them a disregard of the actual case before them, and action upon an extreme, supposititious case, put by counsel, and conclude therefrom that they misunderstood the charge or were misled.

COUNSEL

Macfarlane & Pettingill and Mr. Macfarlane, for plaintiff in error.

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

OPINION

The other facts fully appear in the following statement by RANEY C.J.:

The testimony in this case, which was tried in the circuit court in December, 1891, is as follows:

E. J. Bowen, a witness for the state, testified that he saw deceased, Jonathan A. Brown, on the morning of June 15, 1890, when he got up. Saw nothing remarkable about his health; it was good. He and Brown had been working together for about two weeks, and were rooming together at the house of Mrs. Hale, in Ybor City. Brown was a very hard-working man, and about 60 years old. After breakfast Brown went to Ybor City, returning near dinner time. He and witness ate dinner together. Witness could see nothing remarkable about Brown. He ate dinner all right, as far as witness could see. After dinner they walked out of the dining room, and entered their room, and witness commenced writing, and Brown lay down on a small bed, the head of which was towards the north, to have a nap, the door of the room being open. Just as Brown had laid down, and witness had commenced to write, witness heard some one on the 'stoop-way,' but paid no attention to it until the question, 'Where is Brown?' was asked, when witness turned and saw defendant at the threshould of the door, and replied, 'Lying on the bed.' 'All he had to do,' says the witness, 'was to turn round, and saw Brown.' He said, 'Do I owe you anything, Mr. Brown?' Brown said, 'You do.' Then defendant said, 'You God damned son of a bitch,' and struck him. Witness jumped from the table, but before he could get to the defendant he struck Brown the second blow. Brown was lying on his bed on his side, so that it would fetch the left side up so that the left cheek received the blow. Then witness put his hand on defendant's shoulder, and said, 'Mr. Baker, this won't do.' Baker then turned, and said, 'You damned son of a bitch, if you want any more come out here, and I will give it to you.' Witness then turned around to see Brown, and 'found him in a dying condition, his under jaw fallen down.' 'I saw he was mortally wounded; at least, that was my judgment. I put my hand under his jaw, and raised him up so as he could get his breath, if he had any to get, and I raised him up. And as I raised him, I saw that death had set in.' Witness then went to the door, and hallooed for those around to come and assist; called for McDonald, Barksdale, and Jones, who were in speaking distance. Witness remained with Brown for some time. He did not rally, but died. This was on Sunday, June 15, 1890, in Ybor, Hillsborough county, Fla.

On cross-examination the witness said: 'Brown was in good health all the time he knew him. Could not say what his condition was that Sunday morning when he returned to Ybor City, except that he appeared in good health. Couldn't say that he was intoxicated. Did not know that his health was injured by habits of intoxication. Had known him about a year. Brown had worked for witness in Titusville. Witness did not know his habits. The room was about 12 wide by 14 feetlong. The door faced north, and there was just room between the partition of the house and the door to admit a single bed. When the door opened, it opened right back against the bed. The writing table was in the further end of the room, which would bring his back to the door as it opened. Witness could not see that Baker had anything in his band; he hit Brown with his fist. Witness did not resume writing between Baker's inquiry and his striking. Witness does not think his back was to Baker and Brown at any time while they were speaking, but thinks his whole undivided attention was on them. Brown was in a lying position when Baker struck the second time,--lying down. Witness says he testified at the preliminary examination that Brown might have been getting up when Baker struck him. Witness should judge Brown's head was four inches above the pillow, but would not say for certain. Would not say it under oath, but such was his opinion. Brown had been lying down probably about a half hour before Baker inquired for him. Witness couldn't say whether or not Brown was intoxicated on Sunday.' In reply to the question, if he had not on the preliminary examination stated that Baker, after getting outside, had said, 'My name is Baker, from South Carolina, and if you want any more of me, come outside,' witness said: 'It is impossible for any human being to recollect every word and everything done so long ago, and word might have been changed, and not materially changed; possibly I migh have said so. I won't say I said so. It is so long ago my memory isn't certain. He said: 'If you want any more, come out, and I will give it to you?”

On the redirect, the witness was asked if he was positive the defendant used the vile epithet mentioned in the direct examination, he replied: 'Yes, sir; he used it. Question. You state it on your oath? Answer. Yes, sir; as near as I can recollect. It is impossible to tell...