Caldwell v. State

• Decision Date: 26 July 1905
• Citation: 39 So. 188,50 Fla. 4
• Parties: CALDWELL et al. v. STATE.
• Court: Florida Supreme Court

39 So. 188

50 Fla. 4

CALDWELL et al. v. STATE.

Florida Supreme Court, Division B.

July 26, 1905

Error to Circuit Court, Leon County; John W. Malone, Judge.

George Caldwell and Nelson Larkins were convicted of murder, and bring error. Affirmed.

Syllabus by the Court

SYLLABUS

In order for this court to review testimony on the ground that it was erroneously admitted in evidence, and such testimony was given in answer to a proper question or in narrative form, or if given in answer to a question and being as an answer in its entirety, or as a portion of it not responsive to such question, the record should show that there was a motion in the trial court to strike out such testimony, and if overruled, that there was an exception to such ruling, or that an instruction was asked and refused directing the jury to disregard such testimony, with an exception to such ruling.

This court must assume that a question propounded to a witness was proper until the contrary is made to appear by a statement of the question in the record, and by proper objection thereto and exception to an unfavorable ruling thereon.

The defense of an alibi, to be available, must cover the whole time when the presence of the defendant was required to accomplish the crime, and is sufficient to acquit if it raises a reasonable doubt in the minds of the jury whether or not the defendant was present when the crime was committed but, when the proof of an alibi depends upon the credibility of the witnesses and the weight of evidence, the jury are the sole judges whether the evidence raises such reasonable doubt.

The law in this state is settled that a jury may convict a defendant upon the uncorroborated testimony of an accomplice.

Where there is evidence to support a verdict, and its propriety depends on the credibility of witnesses, the appellate court cannot interfere.

COUNSEL

Nat R. Walker, for plaintiffs in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

HOCKER J.

At a special term of the circuit court of Leon county held in January, 1905, the grand jury found and presented an indictment against Isham Edwards, George Caldwell, and Nelson Larkins containing two counts, in the first of which they charged Isham Edwards with the murder of N.W. Eppes, in said county, on the 3d of September, 1904, by shooting him in the back of the neck and head; that George Caldwell was present, aiding and abetting said Edwards in committing the said murder; and that Nelson Larkins, before the said murder was committed, aided and assisted Edwards to commit the murder. In the second count the indictment charged George Caldwell with shooting and murdering N.W. Eppes, in said county, on the 3d of September, 1904; that Isham Edwards was present, aiding and abetting Caldwell; and that Nelson Larkins, before the committing of the said murder, aided and assisted Caldwell in committing said murder. The indictment is in technical form. The defendants, on arraignment, severally pleaded not guilty. There was a severance, and Isham Edwards was tried separately from the other two defendants. On the 20th of January, 1905, Caldwell and Larkins were put on trial. They were found guilty of murder in the first degree, and sentenced to be hung. From this sentence and judgment they sued out a writ of error.

There are eight assignments of error here, viz.:

First and second. The court erred by refusing to sustain the defendants' objection to that part of the testimony of Marshall Courtney in which a conversation took place between said Courtney and one Isham Edwards, who was an accomplice and jointly indicted with the defendants, to wit: 'Isham Edwards was in the buggy with me, and George Caldwell was in the road cart with Mr. Munford, right behind. I had a conversation with Isham, which was entirely voluntary on his part. George was in the road cart, just behind the buggy, the length of a horse to the buggy, and was close enough to have heard the conversation between Edwards and myself.' The objection to this question was 'that George Caldwell was not present and in hearing distance of Isham Edwards at the time of the conversation.' The court overruled this objection, and the defendants excepted to the ruling. After the court overruled this objection the defendants again objected 'that the state has not shown to the court that the defendant George Caldwell, at the time of this confession, assented to the confession made by Isham Edwards to Marshall Courtney.' This objection was overruled, and exception noted. The bill of exceptions gives the testimony of Marshall Courtney in narrative form only, and we do not know what the question was that drew out the testimony objected to. There are no objections to any questions propounded to him, and no rulings thereon. The confession of Isham Edwards was then given by the witness, in which he implicated both Caldwell and Larkins in the murder of Eppes. The record does not show that the defendants made any motion to exclude the testimony, or requested the court to instruct the jury to disregard it.

In the case of Kissinger v. Staley, 44 Neb. 783, 63 N.W. 55, the court in its opinion, on page 786 of 44 Neb., page 56 of 63 N. W., says: 'If the testimony, of the admission of which complaint is made, was erroneous, it cannot avail the plaintiff in error, for the reason that the record is not in such condition as to raise or present the question of the correctness of its admission. If it was given in response to an interrogatory, there should have been a proper objection to the interrogatory and a ruling obtained thereon, and, if adverse, an exception taken. If the evidence claimed to be objectionable was recited in a narrative form or volunteered by the witness, or if given in answer to a question and being as an answer in its entirety, or as a portion of it not responsive to such question, there should have been a motion to strike it out, and, if overruled, an exception taken'--citing authorities. See Ortiz v. State, 30 Fla. 256, text 269, 11 So. 611; Payne v. Dicus, 88 Iowa, 423, 55 N.W. 483; Marks v. King, 64 N.Y. 628; Pennsylvania Natural Gas Co. v. Cook, 123 Pa. 170, 16 A. 762; Chouteau v. Jupiter Iron Works, 94 Mo. 388, 7 S.W. 467; Fath v. Thompson, 58 N. J. Law, 180, 33 A. 391; Kansas Farmers' Fire Ins. Co. v. Hawley, 46 Kan. 746, 27 P. 176; Hangen v. Hachemeister, 114 N.Y. 566, 21 N.E. 1046, 5 L. R. A. 137, 11 Am. St. Rep. 691; Higginbotham v. State, 42 Fla. 573, 29 So. 410; Dickens v. State (decided at present term) 38 So. 909; Schley v. State (Fla.) 37 So. 518. It is settled doctrine in this court that it cannot consider any objections to the admissibility of evidence, except such as were made in the trial court. Hoodless v. Jernigan (Fla.) 35 So. 656, and cases cited. Any other rule would be unfair to trial judges. We find no error in these rulings.

The third and fourth assignments of error are based on action of the trial judge in overruling objections to the testimony of Charles Dickenson, 'who testified that Isham Edwards said that George Caldwell took the gun and shot Mr. Eppes.' Mr. Dickenson's testimony is given in narrative form in the record, and is as follows: 'That he was on the train which was conveying the three prisoners, Nelson Larkins, George Caldwell, and Isham Edwards, to Jacksonville after the death of Mr. Eppes, and that while on the train he heard Edwards say that he [Edwards] was sitting on Larkins' store porch when Mr. Eppes passed just after dark, and that Nelson Larkins, himself, and George Caldwell ran after Mr. Eppes, and George Caldwell took the gun and shot Mr. Eppes. George Caldwell and Nelson Larkins were present and could hear this statement. The witness, Mr. Dickenson, further testified that the prisoners, Larkins and Caldwell and Isham Edwards, were handcuffed and sitting in a seat behind the seat on which he sat when he made his confession.' Then the record proceeds: 'Thereupon the defendant Larkins, by his counsel, objected thereto upon the ground that nothing had been shown to the court that this confession was made in the presence and assented to by Larkins, the defendant.' This objection was overruled, and the defendants' attorney then objected upon another ground, to wit: 'That Isham Edwards having been jointly indicted with the defendants Nelson Larkin and George Caldwell for the same offense, and Isham Edwards having been tried at this term of the court and convicted of said offense, and was now in the court room, could so testify, thereupon said testimony as given by Mr. Dickenson is entirely hearsay, and totally inadmissible.' The court overruled this objection. The question or questions which drew out this testimony of Mr. Dickenson are not given in the record, nor are any objections to them noted, and we must therefore assume they were correct. After testimony is given to the jury in a cause on trial in answer to questions which are not objected to, we know of no method of taking it from the consideration of the jury, except by a motion to strike the testimony, or by request for an instruction that it be disregarded by the jury. 8 Ency. Pl. & Pr., 246, 247, and authorities cited supra. We do not think these assignments are sustained.

The only other assignment of error which is argued is based on the ruling of the court denying a motion for a new trial. There are nominally three grounds stated in the motion, viz., first, that the verdict is contrary to law; second, contrary to the charge of the court; third, contrary to the law governing the evidence. The argument for the plaintiffs in error on this assignment is addressed to the proposition that the jury, in considering the evidence, did not properly apply the law given them in the charge by the trial judge to the...