Brown v. State
| Decision Date | 28 July 1903 |
| Citation | 46 Fla. 159,35 So. 82 |
| Parties | BROWN v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Marion County; William S. Bullock, Judge.
Willie Lillie Brown was convicted of murder, and brings error. Affirmed.
Syllabus by the Court
1. A defendant's witness in a criminal case may be cross-examined by the State Attorney in regard to matters about which he has been examined in chief, in order to discover whether the witness had not made a different statement to other persons in regard to such matters.
2. The general rule is that specific objections to testimony, not made in the trial court, are not considered in an appellate court.
3. In order to lay the foundation for the impeachment of a witness by proving that he had made statements to others in regard to matters testified to by him different from those given by him in his testimony, the time and place of such alleged different statements, as well as the person or persons to whom made, should be stated to the witness; but the rule does not require perfect precision as to either. The predicate for such impeaching testimony is sufficiently laid when the time place, and person are so stated to the witness that he cannot be taken by surprise, and ample opportunity is afforded him to refresh his memory and make intelligent answers, and to offer such explanations as he may desire.
4. Where a judge has charged a jury fully upon the subject of reasonable doubt, it is not erroneous for him to refuse an instruction asked for by the defendant, in the following words: 'The defendant is not required by law to prove her innocence beyond a reasonable doubt, and if you find that she is probably innocent, or if you believe there is a probability of her innocence, you will find her not guilty,' because the last instruction is embraced in the charge so given by the judge.
5. Where all the evidence in a criminal case is not contained in the bill of exceptions, and that which it does contain does not show the relevancy of a requested and refused instruction, this court cannot say that the judge erred in not giving such refused instruction.
COUNSEL Raymond B. Bullock, for plaintiff in error.
J. B Whitfield, Atty. Gen., for the State.
At the spring term of the circuit court of Marion county, Fla Willie Lillie Brown, the plaintiff in error, was indicted and tried for the murder of one Will Brown, was convicted of manslaughter, and was sentenced to the penitentiary for 15 years. From the judgment and sentence a writ of error was sued out from this court.
The assignments of error relied on here are: (1) The court below admitted improper evidence against the plaintiff in error, in this: that the witness Jeff Davis was allowed, over the objection of the plaintiff in error, to answer and give testimony in reply to the first question propounded on cross-examination.
(2) The court below admitted improper evidence against the plaintiff in error, in this: That the witness Jeff Davis was allowed to give immaterial evidence in reply to the following question by the State Attorney: 'I will ask you to state whether or not, since the time Will Brown was killed, you stated to Mr. Hutson, near the Commercial Bank, in conversation, that Will Brown had been to you, and asked you to loan him a pistol, saying that the defendant here had a pistol, which a white man had given her, and he wanted to protect himself.'
(3) The court below admitted improper evidence against the plaintiff in error, in this: that W. E. Hutson was allowed to give evidence and testify to conversations with Jeff Davis.
(4) The court below erred in refusing to charge the jury as requested in and by the fourth instruction asked for by the plaintiff in error.
One Jeff Davis was examined as a witness by the defendant below. He testified as follows:
The first question on cross-examination was: 'Is it not a fact that here on the grounds of the court house, to-day, you stated to July Brown that this man Will Brown came to you and asked you to loan him your pistol; that this woman had gotten a pistol from a white man, and he wanted to protect himself?' This question was objected to on the ground that 'it sought to introduce new matter, and could not be for the purpose of the impeachment of the witness.' The objection was overruled, and an exception noted, and the witness answered, 'I have not told July Brown any such thing.' This is the basis of the first assignment of error. We do not think it can be sustained. The question was not upon matters outside of and beyond the scope of the direct examination, but was directly upon a matter about which the witness had been examined in chief, viz., about what was said to him by Will Brown when the latter came to the witness to borrow a pistol. The rule laid down in Myers v. State, 43 Fla. ----, 31 So. 275, and invoked by the plaintiff in error, does not apply.
Thereupon the witness Jeff Davis was recalled on behalf of the state, and asked the question which is contained in the second assignment of error. The question was objected to on the ground that the proper foundation for the impeachment of the witness had not been laid, and that the testimony is immaterial. The objection was overruled, and the witness answered that he did not remember anything about a conversation with Mr. Hutson. The attorney for the plaintiff in error does not attempt, in his brief, to show either that no proper foundation for the impeachment of the witness had been laid, or that the testimony attempted to be elicited was immaterial. His whole contention here is that the state, having introduced the witness Davis, was not authorized to contradict or impeach him, as he had not proven adverse. This objection was not made in the trial court, and cannot be considered here. Johnston v. State, 29 Fla. 558, 10 So. 686; Wallace v. State, 41 Fla. 547, 26 So. 713. This assignment of error is not sustained.
The third assignment alleges that W. E. Hutson was allowed to give improper evidence of conversations with witness Davis. The question propounded to the witness Hutson is as follows 'Will you state whether or not, since the killing of Will Brown, near the Commercial Bank, you had a conversation with the witness Jeff Davis, who had just left the stand, in which Davis stated to you that Will Brown had been to you to borrow a pistol, and that Will Brown had stated to him that defendant here had a pistol that she had gotten from a white man to kill him with, and that he wanted to protect himself, or words to that effect?' Thereupon counsel for defendant...
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