Butler v. State

• Decision Date: 11 July 1927
• Parties: BUTLER v. STATE.
• Court: Florida Supreme Court

113 So. 699

94 Fla. 163

BUTLER v. STATE.

Florida Supreme Court, Division A.

July 11, 1927

Error to Circuit Court, Columbia County; Hal W. Adams, Judge.

C. I Butler was convicted of manslaughter, and he brings error.

Affirmed.

(Syhllabus by the Court.)

COUNSEL J. B. Hodges and Guy Gillen, both of Lake City for plaintiff in error.

J. B Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

STRUM J.

Upon an indictment charging murder in the first degree, plaintiff in error, who will hereafter be referred to as the defendant, was convicted of manslaughter, and has taken writ of error to the judgment.

At the trial, the defendant relied upon self-defense.

Amongst other things, the court charged the jury as follows:

'Before one not reasonably free from blame in the inception of the difficulty can justify a homicide under the plea of self-defense, he must have honestly and bona fide declined the combat.'

This language was used in connection with the court's charge upon the rule of apparent or real necessity as an element of the doctrine of self-defense. The defendant contends that the words, 'not reasonably free from blame in the inception of the difficulty,' were confusing when given in connection with the remainder of the charge. The defendant concedes that 'without the words objected to the charge would have been sound.'

We have examined the charge in the light of this contention and in connection with all other charges given, as well as in connection with the evidence adduced at the trial. So considered, we find no reversible error. That portion of the charge above quoted, when considered, as it must be, in connection with the charge as a whole, and in connection with the evidence adduced at the trial, states a correct proposition of law as far as it goes. Kennard v. State, 42 Fla. 581, 28 So. 858. Other phases of the law of self-defense were adequately covered by the trial judge in his charge. Viewing the evidence and issues as well as the entire charge of the court as a whole, it does not appear to us that either the language of the charge above objected to, or its sequence in the entire charge of the court, would tend to confuse, mislead, or prejudice a jury of average intelligence in the trial of this cause. The assignment based on that charge must therefore fail. Graham v. State, 72 Fla. 510, 73 So. 594.

Other assignments are based upon the action of the trial court in overruling defendant's objections to certain interrogatories propounded by the state on cross-examination of one of defendant's witnesses, the purpose of which, it is contended by the defendant, was to indicate to the jury that this particular witness was of unchaste character, and thereby to discredit her. To support his contention that such rulings constituted harmful error, defendant relies upon the case of Sealey v. State, 89 Fla. 439, 105 So. 137. We fully approve the doctrine announced in that case that unchastity does not raise a presumption of untruthfulness, nor disqualify a person from becoming a witness, nor discredit him so as to make his testimony unworthy of belief. In Baker v. State, 51 Fla 1, 40 So. 673, this court also held that want of chastity on the part of a witness cannot be inquired into in any case for thesole purpose of affecting his or her credibility as a witness. (Italics supplied.) See, also, 28 R. C. L. 610 (200).

In connection with the rule laid down in the two cases just cited, it is not inappropriate to observe that the practice of injecting improper matter into a case by indirection or innuendo or by propounding improper questions which insinuate the existence of facts which are degrading or humiliating to the witness, should never by indulged in, and, when it is attempted, it is the duty of the trial court to promptly halt it. See Tully v. State, 69 Fla. 662, 68 So. 934. Of course, if the evidence attempted to be adduced is properly admissible for any purpose, there is no impropriety in offering or admitting it, notwithstanding the fact that it may also tend to humiliate or degrade the witness.

The situation here presented, however, is not altogether as it was in Sealey v. State and Baker v. State, supra. The questions propounded to the witness Miss Kickliter, and to which objections were interposed and overruled, indicate that it was not necessarily the purpose of the state to show unchastity on the part of such witness generally as a means of affecting her general credibility as a witness, which would have been improper, but it may have been the state's purpose to disclose bias, prejudice, or interest on the part of said witness in favor of the defendant by showing that the defendant was the father of the witness' young child. Whether or not such testimony was properly admissible for the purpose and under the circumstances just stated is at least a debatable question which it is unnecessary for us to now decide. See 28 R. C. L 615 (204). The two questions propounded by the state on cross-examination of that witness as to whether or not she had a baby and whether or not she was married or single, which, if taken alone, might tend to violate the rule in Sealey v. State and Baker v. State, supra, were not objected to by the defendant.

Even if the action of the trial court in admitting the testimony objected to could possibly be regarded as technical or formal error, which we do not decide, we are by no means convinced upon the testimony adduced in this case as a whole that the admission of such testimony was harmful or prejudicial to the defendant, or affected the result, or that it 'resulted in a miscarriage of justice.'

The latter observations also apply to the assignment based upon the testimony of another witness, Mrs. Bobbitt.

Technical error, committed by a trial court in the reception or rejection of evidence, does not necessarily constitute harmful error. It is injury resulting from error that warrants an appellate court in reversing a judgment of the trial court. A judgment of conviction will not ordinarily be reversed, even if techincal errors were committed in rulings on the admissibility of evidence, where the evidence of guilt is ample and no fundamental rights of the defendant have infringed. Chesser v. State, 85 Fla. 151, 95 So. 610; Linsley v. State, 88 Fla. 135, 101 So. 273. We fully appreciate the extreme delicacy of duty involved in a pronouncement by an appellate court that testimony, the admission of which might be technical error, was nevertheless not harmful or prejudicial to the substantial rights of the defendant. In view, however, of the abundancy of evidence to support the verdict and judgment, we feel that our conclusion in this case that the error, if any, in admitting the questioned testimony, was at most only technical and did not affect the result, is not an injudicious application of the doctrine of harmless error under the statute. See section 2812, Rev. Gen. Stats. 1920.

During the trial, and at an afternoon session of the court, an ante mortem statement of the deceased was admitted in evidence as a dying declaration;...