Boykin v. State

• Citation: 40 Fla. 484,24 So. 141
• Parties: BOYKIN et al. v. STATE.
• Decision Date: 30 June 1898
• Court: Florida Supreme Court

24 So. 141

40 Fla. 484

BOYKIN et al. v. STATE.

Florida Supreme Court

June 30, 1898

Error to criminal court of record, Orange county; Isaac A. Stewart Judge.

Charles C. Boykin and others were convicted of criminal trespass, and bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. While an official tax receipt is strong evidence of the fact of payment of taxes, yet it is not the exclusive method of proving such payment, but such payment may exist as a fact and may be established orally, whether an official receipt be in existence to evidence it or not.

2. The rule is that where a letter is addressed to a party at his post-office address, and is sent by mail, and a reply thereto, purporting to be from the party to whom it is sent is received by the sender of the letter in due course of mail, such reply letter is admissible in evidence without proof that it is in the handwriting of, or signed by, the party purporting to have sent it.

3. Where evidence is erroneously admitted to prove a fact that is conceded or admitted on the trial to be true, the error in admitting improper evidence to prove such conceded fact is harmless.

4. There is no law or rule of practice that will permit a trial judge, on the motion of the accused in a criminal case, to take such case from the jury in the midst of its trial, and grant a peremptory discharge of the accused from custody before a verdict is rendered, on the ground that no evidence has been adduced to connect him with the crime.

5. It is the duty of a party appealing to an appellate court to make the errors apparent of which he complains; and where, in the examination of witnesses on the trial, any of his questions have been excluded on objection, and such questions do not in and of themselves indicate whether the answers thereto will be material or pertinent evidence or not, it is his duty, in order to have the rulings thereon reviewed on appeal, to make an offer at the trial of what he proposes to elicit or prove by such questions, so that both the trial and appellate court can determine whether the proposed evidence is material or not; otherwise, he fails to make his alleged error to appear, and the appellate court will so declare.

6. In a prosecution for criminal trespass upon land under the provisions of section 2516, Rev. St., it is error for the court to charge in effect, 'that if a party trespasses in the face of direct and positive warning from the legal owner who is in possession, no adverse claim or color of title will excuse the trespass, or the severance and carrying away of anything from the freehold.' The real issue in such cases is: Did the defendant willfully commit the trespass alleged, without any lawful justification or excuse? If, in the commission of the acts complained of, the defendant acts under the bona fide and reasonable belief that he had a lawful right so to act, under a claim of title to the property, either in himself or in others from whom he has derived authority, he cannot properly be convicted under this law, whether the true or legal owner of the land was in the legally presumptive possession thereof or not, and whether such owner or his agent expressly forbade the acts or not. When, in such a case, the defense of a claim of title is set up, the defendant must show that he not only entered under a bona fide belief in his right to enter, but that he had reasonable grounds for such belief; and the bona fides and reasonableness of such belief on the defendant's part are questions for the jury to decide from all the facts and circumstances of the case. It is error in such a case to instruct the jury that the belief of right to enter on the part of the trespasser, in order to excuse, must be such as would actuate a 'prudent' man.

COUNSEL

L. G. Starbuck, for plaintiffs in error.

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

OPINION

TAYLOR C.J.

The plaintiffs in error were jointly convicted, in the criminal court of record in Orange county, of the charge of criminal trespass upon land, and, from a sentence imposing a fine, take writ of error to this court.

The first assignment of error, predicated upon the court's refusal of an application for severance of trial as to one of the defendants, is expressly abandoned.

A state witness, after testifying that he was president of the corporation alleged to be the owner of the land trespassed upon, was asked the question in reference to said land, 'Have you paid the taxes?' This question was objected to by the defendants, on the ground that the receipts and records were the best evidence. The objection was overruled, and this ruling constitutes the second assignment of error. The witness, in answer to the question, said, 'I have paid the taxes ever since we purchased the land;' then immediately afterwards, on cross-examination, stated that 'I paid part of the taxes myself, and Garrett paid part of them.' After the last answer, the defendants moved the court to strike out so much of the evidence as related to the payment of taxes, on the ground that it was not within the witness' knowledge. The court overruled the motion, and such ruling constitutes the third assignment of error. There was no error in either of these rulings from the standpoint of the special objections made. Ordinarily, when the fact of the payment or nonpayment of taxes is a question directly at issue in a suit, the official receipts required by law to be issued by the tax gatherer as evidence of such payment would probably be the most persuasive evidence of the fact of payment. But in this case the payment of the taxes on the lands trespassed upon was a collateral question of proof, and there was no impropriety in permitting the witness to state, as an abstract fact within his knowledge, that he had paid the taxes on the land, without exhibiting the official receipts that evidenced such payments. While an official tax receipt is strong evidence of the fact of payment of taxes, yet it is not the exclusive method of proving such payment, but such payment may exist in fact, and may be established orally, whether an official receipt be in existence to evidence it or not. Blackw. Tax. Titles, § 489; Davis v. Hare, 32 Ark. 386; McDonough v. Jefferson Co., 79 Tex. 535, 15 S.W. 490; Adams v. Beale, 19 Iowa, 61; Hammond v. Hannin, 21 Mich. 374; Elston v. Kennicott, 52 Ill. 272; Richards v. Hatfield, 40 Neb. 879, 59 N.W. 777. The motion to strike the evidence as to the payment of taxes was properly overruled, as it had not been shown, at the time the motion was made, that the witness did not, of his own knowledge, know of such payments. When he answered that he had paid part of the taxes himself, and Garrett had paid the other part of them, this did not show that he was testifying from hearsay. He may have seen Garrett pay the taxes paid by him, and thus known actually of his own knowledge that they were paid in fact by Garrett, as well as by himself.

The fourth and fifth assignments of error are expressly abandoned.

D. B. Stewart, a witness for the state,--after testifying that he was one of the original incorporators of the alleged corporate owner of the land trespassed upon, and that he looked after the company's lands for it, and that he had interviewed the defendants Boykin and Edwards about their cutting of the cedar on the lands that constituted the prosecuted trespass, and that they told him they had cut it under authority from the defendant Lander, who represented Ramsey or Ramsey & Co., who had a tax deed to the land, and that they had bought the timber from Lander, agreeing to pay $50 therefor,--produced a letter to himself (the witness) purporting to have been written and signed by the defendant Lander, and stated that he (the witness) had written to Lander about the trespass on the land, and, in due course of mail, received from him in reply the letter that he then produced. Thereupon the letter from Lander, thus identified, was offered by the state in evidence, but was objected to by the defendants, on the grounds that it was immaterial, and that the connection of the defendants or either of them therewith had not been proved, nor any proof made of handwriting. The judge overruled the objections, and admitted the letter in evidence, and this ruling is assigned as the sixth error. There was no error in this ruling. The letter, while practically of lettle importance in the case, cannot be said to be so immaterial as to warrant an adjudication that it was error to admit it. It, at least, corroborated the witness' testimony to the effect that he had written to Lander, and received this letter in reply; and it also tended to establish some connection between Lander, its writer, and the other two defendants in the matter of the alleged trespass. The contention that this letter was inadmissible because it was not first shown that it was in the handwriting of Lander, whose letter it purported to be, is untenable. The rule is that where a letter is addressed to a party at his post-office address, and is sent by mail, and a reply thereto, purporting to be from the party to whom it is sent, is received by the sender of the letter in due course of mail, the letter thus received in reply is admissible in evidence without proof that it is in the handwriting of, or signed by, the party purporting to have sent it. 1 Greenl. Ev. (15th Ed.) § 573a; Ovenston v. Wilson, 2 Car. & K. 1; Campbell v. Iron Co., 83 Ala. 351, 3 So. 369.

A state witness testified that in the summer of 1896 he shipped from a railroad station, in the vicinity of the land alleged to have been trespassed upon, for the defendants Boykin and Edwards, 550 feet of hewed cedar timber, and that afterwards the defendant Boykin deposited with him $50 which was...