Boyd v. State

• Citation: 122 So.2d 632
• Decision Date: 07 April 1960
• Docket Number: No. B-267,B-267
• Parties: Willie BOYD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 632

122 So.2d 632

Willie BOYD, Appellant, v. STATE of Florida, Appellee.

No. B-267.

District Court of Appeal of Florida, First District.

April 7, 1960.

A. K. Black, Lake City, and John L. Westberry, Perry, for appellant.

Richard W. Ervin, Atty. Gen., and Leonard R. Mellon, Asst. Atty. Gen., for appellee.

STURGIS, Judge.

The appellant, defendant below, was convicted of manslaughter under Section 782.07, Florida Statutes, F.S.A., upon an indictment charging that the unlawful death resulted from defendant's culpable negligence in the operation of an automobile.

Reversal is sought on the grounds that the trial court erred: (1) in denying defendant's motion to quash the indictment; (2) in denying defendant's motion for a bill of particulars; (3) in refusing to admit in evidence a photograph proffered by defendant; (4) in denying defendant's motion for a directed verdict; and (5) in refusing certain charges to the jury as requested by defendant.

The indictment charged the defendant with

'culpable negligence in driving, operating, controlling and handling the aforesaid Ford pulpwood truck in a manner than was then and there reasonable and proper, and not then and there having due regard of the traffic and use of the aforesaid Public State Road and Highway, and with disregard for the life and safety of Beverly Hart.'

While this indictment is something less than a paragon of perfection, it adequately states the offense defined by F.S. Section 782.07, F.S.A., and the motion to quash was properly denied. Kirkland v. State, 86 Fla. 64, 97 So. 502; Tindall v. State, 99 Fla.1132, 128 So. 494; Patterson v. State, 128 Fla. 539, 175 So. 730.

Defendant's motion for a bill of particulars was filed after entry of his plea to the indictment. It was therefore within the discretion of the trial court to grant or deny the motion. Mathis v. State, 45 Fla. 46, 34 So. 287. In so holding we do not undertake to determine whether the result would be otherwise had the motion been timely filed.

On cross-examination by defendant's counsel of a witness who testified in support of the state's case in chief, the witness was confronted with a photograph which had not previously been exhibited or alluded to in any manner, and was questioned whether it substantially depicted the physical condition immediately following the accident of a truck and automobile involved therein, to which an affirmative reply was given. No further inquiry was made of this or any other witness concerning the photograph. Thus there was no testimony reflecting when the photograph was made, the position of the camera, the extent of the view reflected thereby, or any effort made to use it as an aid to testimony. After the state closed its case in chief the defendant, without further qualification or explanation, proffered the photograph in evidence, and upon objection its admission was denied. When properly identified, photographs are usable as an aid to the jury in somewhat the same capacity as a view of the scene. They are generally admissible in evidence for use by witnesses in explaining their testimony, thus enabling the jury to better understand the facts. Ortiz v. State, 30 Fla. 256, 11 So. 611. Considering the proffer in the light of these circumstances, the court did not err in refusing to admit the photograph in evidence.

We find no merit in defendant's contention that the court erred in failing to charge the jury with the rule of law governing circumstantial evidence in criminal prosecutions. Our review of the testimony reflects that the state relied primarily on the direct testimony...