Brown v. State

• Decision Date: 28 April 1926
• Citation: 91 Fla. 682,108 So. 842
• Parties: BROWN v. STATE.
• Court: Florida Supreme Court

108 So. 842

91 Fla. 682

BROWN v. STATE.

Florida Supreme Court, Division B.

April 28, 1926

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Willie Brown was convicted of murder in the second degree, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Exceptions are not taken to statements of counsel, but only to rulings and decisions or remarks of court. Exceptions in the course of a trial are taken, not to statements or remarks of counsel, or to any other matters save to the rulings and decisions or remarks of the court

Office of exception is to challenge rulings and decisions of trial court, so that they may be corrected by court itself, and is to point out wherein excepting party claims to have been prejudiced by rulings of court. The office of an exception is to challenge the rulings and decisions of the trial court promptly when made, that such rulings and decisions may be corrected by the court itself, if deemed erroneous. It is to point out wherein the excepting party claims to have been prejudiced by the rulings of the trial court.

To have alleged improper or harmful language of state's attorney to jury reviewed on appeal, it must be made to appear that language was brought to attention of trial court, ruling obtained thereon, and exception taken to such ruling. 'When a defendant in a criminal prosecution conceives that the state attorney has used improper or harmful language in his argument to the jury, in order to have the same reviewed by the appellate court, it must be made to appear that such language was brought to the attention of the trial court, a ruling obtained thereon, and an exception taken to such ruling.'

Merely asking court 'to give us an exception' to remark of opposing counsel is not exception to ruling or decision of court; besides asking court to give exception to remarks of opposing counsel, it must be further shown that because of court's refusal to rule, or because of adverse ruling, or because ruling was insufficient to overcome harmful effect of remark, defendant excepted to court's action. Merely asking the court to 'give us an exception' to the remarks of opposing counsel is not an exception to a ruling or decision of the court. It must be further shown that because of the refusal of the court to rule, or because of its adverse ruling, or because the ruling is deemed insufficient to overcome the harmful effect of the remarks the defendant excepted to the court's action.

Even if remarks by state attorney in jury's presence, relative to probable testimony of witness, were improper, immediate instruction by court at request of defendant's counsel not excepted to, that jury should disregard remarks sufficiently withdrew language from jury. Even if remarks made by the state attorney in the presence of the jury, relative to the probable testimony of a witness were improper, an instruction immediately given by the court at the request of the counsel for the defendant, which was not excepted to, instructing the jury to disregard the remarks of the state attorney, sufficiently withdrew the language from the consideration of the jury.

Counsel for prosecution in criminal case is not bound to introduce all witnesses present at time of commission of offense. 'Counsel for the prosecution in a criminal case are not bound to introduce all the witnesses who were present at the time of the commission of the offense.' Selph v. State, 22 Fla. 537.

Presiding judge has right in exercise of sound discretion to call witnesses either for or against prisoner and to permit both sides to cross-examine him. 'The presiding judge has a right, in the exercise of a sound discretion, to call a witness either for or against the prisoner, and, when so called and questioned by the court, to permit both sides to cross-examine him.' Selph v. State, supra.

Court has discretion to call in witness present at transaction, or whose name is on indictment, or who is not called by prosecution; witness called by court may be examined and cross-examined by both sides. 'It is in the discretion of the court to call any witness who was present at the transaction, or whose name is on the indictment, not called by the prosecution; and, when so called, the witness may be examined and cross-examined by both sides. He is not a witness for either party.' 16 C.J. 846.

Prosecution is not compelled to call and vouch for witness, even if he knows all about facts, if prosecuting officer in good faith and under official oath is of opinion that witness, by false swearing or concealment of material facts, will attempt to establish innocence of defendant; witness not called by state, even though it is evident he knows all about facts, for fear that he will, by false swearing or concealment, attempt to establish innocence of defendant, may be called by court and examined and cross-examined by prosecution and defendant. 'The prosecution is not compelled to call and vouch for a witness, even though it is evident that he knows all about the facts, where the prosecuting officer, acting in good faith and under his official oath, is of the opinion that the witness will, by false swearing or by concealment of material facts, attempt to establish the innocence of the defendant; but such witness may be called by the court upon the request of the state's attorney, and may be questioned by the court, and examined and cross-examined by the prosecution and the defendant.' 16 C.J. 847.

Witness called, sworn, and examined by court is not witness for either party; where witness called, sworn, and examined by court in criminal case gives testimony detrimental to state, it is not error to permit state attorney to lay predicate to impeach and later permit him to introduce testimony to impeach such witness. A witness called, sworn, and examined by the court is not a witness for either party, and, where such a witness in a criminal case gives testimony that is detrimental to the state's case, it is not error for the court to permit the state attorney to lay a predicate to impeach, and later to permit him to introduce testimony tending to impeach, such witness.

In prosecution for murder, question to impeaching witness as to whether certain witness stated to him that defendant had come to house with pistol, and, on refusal of request for money, shot certain person, was improper as leading, but not cause for reversal. While a question to an impeaching witness in the following form, to wit: 'State whether or not at the time and place, this little girl, Ruth Beatrice Johnson, stated to you that this defendant, Willie Brown, had come to your house with a pistol in his hand, and asked Marie Skinner for some money, and when she did not give it to him this defendant jumped on her on the bed and shot her, did she make that statement?' is improper as leading and suggesting the answer desired, yet under many previous holdings of this court the permitting of such a leading question is the exercise of a discretion not reversible by this court on writ of error.

COUNSEL

William A. Hallowes, Jr., and Miles W. Lewis, both of Jacksonville, for plaintiff in error.

J. B. Johnson, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.

OPINION

CAMPBELL Circuit Judge.

Willie Brown, the plaintiff in error, was convicted in the circuit court of Duval county, Fla., of murder in the second degree, and upon writ of error to this court, seeks to have the judgment of the court below reversed, and a new trial granted him.

The written instrument filed in this court, and designated as an assignment of errors, is nothing other than a copy of the motion for new trial, which was filed in the court below. There are seven grounds stated in the purported assignment of errors, and the counsel on both sides treat each ground as an assignment of errors. We will therefore consider these several grounds of the motion for new trial as assignments of errors.

We would further remark that several of these assignments of error are set forth with so much prolixity, and are so confused, containing a long recitation of the evidence and remarks of the counsel and the court during the progress of the trial, that we will not undertake to set them out at length.

After the state attorney had offered all the testimony that he thought necessary and proper, he made the following statement to the court:

'May it please the court, this child, Ruth Beatrice Johnson, is a little girl, about 6 or 7 years old. I understand that her statements have been conflicting. She is supposed to have been there, but her statements have been conflicting as I understand it, both to investigations on the part of the state and possibly counsel for the defendant. I do not feel that the state should be bound by her statements or her testimony, and yet I feel that it might be pertinent or proper that she be called and her statement given here under such examination as the court may deem proper, for the benefit of the jury.'

Upon the conclusion of these remarks by the state attorney, the attorney for the defendant made the following objection:

'The defendant takes exceptions to the language used by the state attorney in the presence of the jury, on the ground that it is prejudicial to the rights of the defendant, and asks your honor to instruct the jury to disregard it, and give us an exception.'

It appears from the record before us that the trial judge thereupon instructed the jury in the following language:

'Gentlemen of the jury, this case is on trial before you on the sworn testimony in the case, and upon that testimony and that alone you are to try this defendant, and any statement of the counsel that the witness has made conflicting statements or otherwise is no part...