Childers v. State

• Court: Florida Supreme Court
• Writing for the Court: TAYLOR, J.
• Citation: Childers v. State, 74 Fla. 288, 77 So. 99 (Fla. 1917)
• Decision Date: 13 November 1917
• Parties: CHILDERS v. STATE.

77 So. 99

74 Fla. 288

CHILDERS v. STATE.

Florida Supreme Court

November 13, 1917

Error to Circuit Court, Madison County; M. F. Horne, Judge.

E. L Childers was convicted of murder in the first degree, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

When declarations made by the defendant to third persons shortly after the homicide as to words spoken by the deceased and other occurrences at the time of such killing are rejected when offered by the defendant to be proven by such third persons, held that, even if such declarations were anything more than self-serving declarations and the veriest hearsay the error, if any, in their exclusion through such third persons, was cured and became harmless error when the defendant was afterwards permitted to testify under oath as a witness for himself under the statute as to the substance of the matter rejected when offered to be proven as declarations made by the defendant to such third persons.

Evidence that tends to show premeditated design to kill the deceased is properly admitted in a trial for murder.

Evidence that tends to show hostile feeling by the defendant towards his victim the deceased is properly admitted in a trial for the homicide, as it tended to show a motive for the crime.

Evidence showing an adulterous intercourse between the defendant and the wife of the deceased is properly admitted, as it tends to establish the motive of the defendant for committing the homicide.

Evidence admitted in a trial for murder may be so wholly impertinent foreign, and immaterial to any issue in the case as to be wholly incapable of harm to the defendant, in which event the court will adjudge its erroneous admission to be harmless error.

There is no error in excluding the testimony of the defendant by which he sought to show that the illicit intercourse between himself and the wife of the deceased was brought about by the solicitation of said wife, as said proffered testimony was wholly impertinent and immaterial to any issue in the case and furnished no excuse or palliation for either such illicit intercourse or for the subsequent slaying of such woman's husband.

Any evidence that tends to prove that a person suspected of crime in any manner endeavors to escape or evade a threatened prosecution, by flight, concealment, resistance to lawful arrest, or other ex post facto indication of a desire to evade prosecution, is properly admissible as one of a series of circumstances from which guilt may be inferred.

When a question to a witness for the defense is disallowed by the court, but, notwithstanding the court's ruling on the question disallowed, the witness goes ahead and answers the question fully, and his answer is not stricken or taken from the jury, the error, if any, in the disallowance of the question is cured, and no harm results to the defendant from the ruling disallowing the question of which he can afterwards complain.

An appellate court should not grant a new trial upon the ground of the insufficiency of the evidence to sustain a verdict of guilt affirmed by the trial court if there is some substantial evidence of all the facts legally essential to support the verdict, and the whole evidence is such that the verdict may fairly have been found on it.

A verdict will not be set aside by an appellate court where the propriety of the verdict depends, not upon the lack of evidence, but upon the credibility or weight of conflicting testimony.

COUNSEL Chas. E. Davis and R. H. Rowe, both of Madison, for plaintiff in error.

T. F. West, Atty. Gen., and Glenn Terrell, Asst. Atty. Gen., for the State.

OPINION

TAYLOR J.

The plaintiff in error, hereinafter referred to as the defendant, on writ of error seeks a review of a judgment of the circuit court of Madison county convicting and sentencing him for the crime of murder in the first degree; the verdict of the jury having recommended him to mercy.

The first, second, third, fourth, thirteenth, fourteenth, and fifteenth assignments of error all involve the same question, and are presented and argued together, and will be so disposed of. These assignments of error all complain of rulings of the court rejecting certain cross-interrogatories propounded by the defendant's counsel to two or three of the state's witnesses, by which it was sought to have said witnesses testify as to what the defendant had told them that the deceased had said to him at the time of the killing, and what the defendant had told them as to the deceased having tried to draw his pistol, and that he, the defendant, had told said witnesses that he thought he had better not take any chances, and had therefore shot the deceased; all of said declarations by the defendant in the hearing of said witnesses having been made within from one and a half to two or three minutes after the killing of the deceased by him.

There was no error in the rulings so assigned. Even if the rejected evidence can be said to be anything more than self-serving assertions made by the defendant after the close of the tragedy, and attempted to be introduced as substantive evidence through the mouths of third persons who heard him make them, still the defendant has not been injured by their rejection as made to these third party witnesses, for the reason that afterwards, when testifying as a witness under our statute, on his own behalf, he was permitted as a witness for himself, and while under his oath as such, to give in evidence the substance of such rejected assertions. Such assertions, when testified to by himself as a witness under oath and subject to cross-examination were admissible as direct evidence, but when offered through the mouths of third persons who heard him make them, it was hearsay and inadmissible.

A state's witness one G. D. Purvis, had testified in substance that at the early hour of 5 or 5:30 o'clock on the morning of, and a short while before, the homicide, he had seen the defendant promenading back and forth at the railroad crossing a short distance from the place of the tragedy, and that he, the witness, within a few minutes after seeing the defendant there, had himself crossed at said railroad crossing, and that as he was at the railroad crossing he made an observation as to whether from that point, where he had seen the defendant walking back and forth, he could see the home of the deceased, Herring. To this witness the state's attorney then propounded the following question: 'State whether or not you could see Mr. Herring's [the deceased] home from the place where you were.' The question was objected to by the defendant on the grounds that it did not tend to prove malice, premeditation, nor an intent to take the life of Herring or any human being, nor is it germane to any issue in the case. The objection was overruled, and the ruling excepted to, and such ruling is assigned as error No. 5. There was no error in this ruling. The evidence sought thereby, when coupled with other evidence adduced in the case to the effect that the deceased, Herring, conducted a mercantile business in a building near the place where he was killed, and was in the daily habit of going from his home to his place of business about the time that he was killed, and that the defendant was in a position to know of this habit, tended to show that the defendant was on the lookout for the deceased, and for an opportunity to kill him, and therefore tended to show premeditated design.

To Mrs. Herring, the wife of the deceased, while testifying as a witness for the state, the following question was propounded: 'Do you know what route Herring, the deceased, usually went to and from his store prior to his death?' The defendant objected to this question on the ground of irrelevancy and immateriality. The objection was overruled, and the ruling excepted to, and this ruling is assigned as the sixth assignment of error. After replying in the affirmative to the above question, the following question was propounded to the witness: 'State what that route was.' Objection was also made to this last question that was also overruled, and the ruling excepted to, and this ruling is assigned as the seventh error.

For the reason stated in the discussion above of the fifth assignment of error, there was no error in...