Beard v. State
| Decision Date | 24 July 1958 |
| Docket Number | No. A-22,A-22 |
| Citation | 104 So.2d 680 |
| Court | Florida District Court of Appeals |
| Parties | Willard BEARD and Faye Davenport Jernigan, Appellants, v. STATE of Florida, Appellee. |
Scruggs, Carmichael & Avera, Gainesville, for Appellant Beard and A. Z. Adkins, Jr., Gainesville, for appellant Jernigan.
Richard W. Ervin, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for appellee.
Appellants Willard Beard and Faye Davenport Jernigan were convicted of having made lewd, lascivious and indecent assault upon one Martha Davenport, a female child under the age of fourteen years. Each has taken an appeal from the judgment and sentence entered consequent upon the jury's verdict.
Both appellants have assigned as error the jury's possession during deliberation of a certain letter not offered and admitted in evidence. The record indicates that after the jury had retired they returned to the courtroom, asked and were granted permission to take to the jury room certain exhibits which had been received in evidence. It later developed that one of the items delivered to the jury was a letter which had been marked for identification only during the State's cross-examination of a defense witness but not offered or received in evidence. This letter purportedly evidence an illicit affair between the defendant Jernigan and one other than her codefendant Beard. It is fundamental that under the applicable statute 1 jurors may, if the court permits, take with them to the jury room for use in their deliberations only such things, other than depositions, as have been received in evidence. 2 A careful analysis of the letter in question, however, convinces us that it could not have prejudiced Beard's position in any manner and in fact bore no relation either to him or to the crime with which he was charged. As to Jernigan, while we do not endorse the situation presented here, our examination of the record established that the other evidence properly admitted against her was clear and convincing and leaves no room for reasonable doubt of guilt. The error arising from the jury's not affect the remaining evidence nor not affect the remaining evidence not reach the legality of the trial itself. 3 The error complained of was therefore harmless and not sufficient to constitute reversible error. 4
Appellant Beard assigns as error certain alleged improper remarks made by the State Attorney during the course of the trial. Needless to say inflammatory and acrimonious remarks should not be indulged by either the prosecuting officer or counsel for the defense. Such conduct serves only to degrade the dignity of the court, beget prejudice, and transform the solemn and serious business of administering justice into a pitched battle resembling a gladiatorial event in which the actor most adept at creating passion and prejudice may and often does prevail. Clearly, this is not the goal of justice. However, we have carefully examined the statements against which the objection is here leveled together with rulings of the trial court in that behalf and, without condoning the remarks of counsel, cannot agree that they were sufficient under the circumstances to warrant reversal. If because of overzealousness or an inability to understand his proper function as an officer of the court, counsel is unable to discharge his duties within the bounds of propriety inherent in and essential to a fair trial, the trial judge should firmly assert his authority as administrator of the court to the end that its dignity will be preserved and justice administered according to its finest tradition. 5 Failure to do so, if prejudicial, will result in a reversal on appeal.
The stirring representations to this court made by appellant Beard to the effect that the testimony of the prosecuting witness was so incredible as to be unworthy of belief is legally efficacious only before the jury or before the trial court on motion for a new trial. The witness' testimony was clearly admissible and, if believed, was competent to prove the charge. It is axiomatic that the weight to be accorded such evidence, and the credibility of the witness by whom it is adduced, lies exclusively within the province of the jury. On appeal, this court will not substitute its judgment of such matters for that of the jury, nor will it pit its judgment against that of the jury in the determination of factual issues presented at trial.
We come now to a consideration of appellant Beard's contention that the trial court erred in denying him the right to the concluding argument before the jury, contrary to F.S. § 918.09, F.S.A. 6
Examination of the record reveals that Beard's co-defendant, Jernigan, through her separate counsel, called and examined numerous witnesses in support of her defense. Counsel for Beard conducted extensive cross-examination of all but one of these witnesses; otherwise Beard offered no testimony save his own. At the conclusion of the trial, the court ruled that the State would have the opening and closing argument before the jury. The State takes the position on this appeal that the mentioned cross-examination by Beard's counsel went outside the scope of matters covered on direct and that the favorable testimony thus adduced...
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Wingate v. State, 69--563
...which admonished counsel to stay within the realm of proper argument. Eg., Stewart v. State, Fla.1951, 51 So.2d 494; Beard v. State, Fla.App.1958, 104 So.2d 680. Certainly, the ideal climate for the conduct of a criminal trial is one of fair and cool impartiality. Goddard v. State, 143 Fla.......
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State v. Hamilton
...unauthorized material in question dealt not with the law, but with factual issues connected to the case. Likewise, in Beard v. State, 104 So.2d 680, 681 (Fla. 1st DCA 1958), the First District confronted a letter mistakenly sent to the jury in a trial of two defendants named Beard and Jerni......
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Di Bona v. State, 1402
...could be based, and the jury having based its verdict thereon, this court will not disturb such finding on appeal. See Beard v. State, Fla.App.1958, 104 So.2d 680; Harris v. State, Fla.App.1958, 104 So.2d 739, and Harvey v. State, Fla.1956, 87 So.2d The one remaining point which we will com......
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Williamson v. State
...See, e.g., Ivory v. State, 330 So.2d 853 (Fla. 3d DCA 1976), quashed on other grounds, 351 So.2d 26 (Fla.1977); Beard v. State, 104 So.2d 680 (Fla. 1st DCA 1958). The matter of the 1990 Williamson judgment and sentence falls into this latter Since there is no direct testimony from the jury ......