Clemmons v. State
| Decision Date | 09 April 1901 |
| Citation | 43 Fla. 200,30 So. 699 |
| Parties | CLEMMONS v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Holmes county; Evelyn C. Maxwell, Judge.
John Clemmons was convicted of murder in the third degree, and brings error. Affirmed.
Syllabus by the Court
1. Erasures and interlineations in the same ink and handwriting as the body of an indictment, that are not only not contrary to the probable meaning of the indictment as it stood prior to their insertion, but which make that meaning clear, will in the absence of proof to the contrary, be presumed to have been made before the indictment was presented by the grand jury.
2. A demurrer to a plea in abatement, and the ruling of the court thereon, are matters of record, to be exhibited to an appellate court by the record proper, and not by bill of exceptions.
3. The law does not require the county commissioners of any county to make a list of the persons sworn and impaneled as grand jurors at any term of the circuit courts.
4. The dying declarations of a deceased relating to what was said by him or the accused, and what happened between them at the time of the fatal encounter, are properly admissible in prosecutions for unlawful homicide.
5. Any expressions of one mortally wounded at the time of making an alleged dying declaration, tending to show that he then believed his death was imminent, are admissible for the purpose of determining whether the declaration then made was in fact a dying declaration.
6. Evidence of acts, remarks, or conduct of one accused of the cirme of murder, showing unfriendliness on his part towards the deceased, is admissible, though such acts, remarks, or conduct occurred two or three weeks prior to the homicide where other testimony in the case tends to show acts of unfriendliness between the parties at intervals for more than a year prior to the homicide.
7. The omission of the court to instruct the jury upon any point of law in a case is not available to one who has not requested an instruction on that point, and taken an exception to the ruling of the court refusing his instruction.
8. A motion for a new trial upon the ground of the illness of a juror is properly refused, where it is not shown that the juror was when the verdict was rendered, or before, so ill that he could not give careful and conscientious consideration to the merits of the controversy then pending before him, or that the verdict rendered by him did not express his deliberate conviction of defendant's guilt upon a full and careful consideration and comparison of the evidence.
9. Improper argument of counsel for the state in the hearing of the jury, if checked by the court as soon as it is brought to its attention and not further persisted in, is not sufficient to require the court to grant a new trial.
10. Where the evidence in terms does not make out a case of murder in the third degree, but is sufficient to sustain a higher degree of murder, the verdict for murder in the third degree must be sustained as against a motion for a new trial upon the ground that the evidence is insufficient to support the verdict.
C. M. Cox, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
At the fall term, 1900, of the circuit court of Holmes county, plaintiff in error was convicted of murder in the third degree upon an indictment charging him with the crime of murder in the first degree, and from the sentence imposed sued out this writ of error.
I. Defendant moved to quash the indictment upon two grounds: First, that it fails to allege that the deceased was a human being; second, because of important and material interlineations and erasures therein, in this: That the words 'with intent' and 'to' have been stricken out, and the word 'did' inserted in lieu of the word 'to,' all of which is of substance, in that it changes the offense from an assault with intent to murder to that of murder. The ruling denying this motion is assigned as error. The indictment alleges distinctly that the deceased, William Barton, was a human being; that defendant, on March 1, 1899, in Holmes county, Fla., without authority of law, of his malice aforethought, and from a premeditated design to effect the death of Barton, assaulted him with a deadly weapon, to wit, an open knife, and then and there unlawfully, etc., cut, stabbed, and wounded him in and upon the body, giving unto him, by means of such cutting, stabbing, and wounding with said knife, unlawfully, etc., one mortal wound, of the depth of six inches, and of the breadth of half an inch; and that of said mortal wound Barton then and there instantly died; and then proceeds literally as follows: 'And the grand jurors aforesaid upon their oaths aforesaid do say that the said John Clemmons did then and there willfully, without authority of law, of his malice aforethought, and from a premeditated design to effect the death of him, the said William Barton, then and there did kill and murder him, the said William Barton, against the form,' etc. The original indictment has by an order of the circuit judge been transmitted to this court, to be considered in connection with the copy certified in the transcript. The original appears to have been a printed form of indictment for assault with intent to murder, with appropriate blank spaces for alleging the time, place, and circumstances of the assault and the names of the parties. In this indictment the blanks are properly filled, so as to charge the crime of murder in the first degree, and the only complaint is that in the part quoted the printed words 'with intent' are erased, and the printed word 'to' is also erased, and the word 'did' interlined above it. It is not claimed that the erasures or interlineations were in fact unauthorized, or that they were made after the indictment was presented by the grand jury, and, looking at the original, we find that they appear to have been made with similar ink to that used in filling out the blank spaces and in the same handwriting, and that they are not only not contrary to the probable meaning of the indictment as it stood before their insertion, but evidently make that intention clear. This being true, it must be presumed that the alterations were made before the indictment was presented by the grand jury; and the other ground of the motion being erroneous in point of fact, as an inspection of the indictment shows, the circuit court did not err in denying the motion to quash.
II. The defendant pleaded in abatement, among other pleas, the following: '(3) The defendant, for further plea in abatement, says that no list of the persons sworn and impaneled as grand jurors, and finding and presenting the indictment, was ever made by the board of county commissioners of the county of Holmes.' It is claimed that the court erred in sustaining the state's demurrer to this plea. The record proper does not show that a demurrer was interposed to this plea. In the bill of exceptions we find a demurrer, and the ruling of the court sustaining it, but these are matters of record, to be exhibited by the record proper, and not by bill of exceptions. We will say, however, that the plea was without merit, as it tendered an immaterial issue. The law does not require the county commissioners of any county to make a list of the persons sworn and impaneled as grand jurors at any term of the court. If it was the intention of the defendant to allege in this plea that the county commissioners at their January meeting failed to select and make a list of the names of persons to be placed in the jury box from which to select grand and petit jurors, as argued in his brief, he has wholly failed to do so.
III. In this record we have two bills of exceptions,--one purporting to contain the exceptions taken to rulings of the court; the other purporting to contain all the evidence adduced at the trial, both presented and signed at the same time. In the bill containing the exceptions it appears that the state introduced Mrs. Barton, wife of the deceased, and, having laid the predicate for the admission of the deceased's dying declarations, offered to prove by her what the deceased, Barton, had said as to how he came to his death, and also what deceased said as to the cause of the mortal stroke, by asking her the question: 'What further, if anything, did your husband say?' The state also offered to prove by another witness, Ransom Powell, the deceased's narration of the circumstances under which he was cut, and by another witness, G. W. Arnold, what the deceased had said touching the conversation between him and the defendant, and the deceased's narration of the circumstances leading up to and surrounding the difficulty. The defendant objected to the several matters so offered to be proven, upon the ground that the matters sought to be elicited were not properly admissible...
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