Clinton v. State

• Decision Date: 26 February 1907
• Citation: 53 Fla. 98,43 So. 312
• Parties: CLINTON et al. v. STATE.
• Court: Florida Supreme Court

43 So. 312

53 Fla. 98

CLINTON et al. v. STATE.

Florida Supreme Court, Division A.

February 26, 1907

Error to Criminal Court of Record, Volusia County; Isaac A Stewart, Judge.

Buck Clinton and Edward Clinton were convicted of crime, and bring error.Reversed.

Syllabus by the Court

SYLLABUS

Prior to the adoption of special rule 6 on the 2d day of March 1905(37 South. xiv)rule 103, adopted at the April term 1873, governed in the preparation of transcripts and bills of exceptions in criminal cases.Special rule 6 gives the plaintiff in error in criminal and habeas corpus cases the option to have the transcript of the record and bill of exceptions made up, settled, and certified, either in accordance with special rules 1,2, and3, adopted on the 2d day of March, 1905(37 South. x-xii), or in compliance with such rule 103(41 Fla. 34).The respective modes of procedure must not be blended, but one or the other of such modes must be selected and followed.

It is the duty of a party resorting to an appellate court to see that his transcript of record is properly prepared, in compliance with the rules of court, and to make the errors complained of clearly to appear.

Whether an infant of tender years has sufficient mental capacity and sense of moral obligation to be competent as a witness is a question for the discretion of the trial judge, and his ruling in that regard will not be disturbed by an appellate court, except in case of a manifest abuse of discretion, or where the witness is admitted or rejected upon an erroneous view of a legal principle.

It is the duty of the trial court, where an infant of tender years is offered as a witness, especially in a criminal case, to examine him and ascertain whether he has sufficient intelligence and understanding of the nature and obligation of an oath to be a competent witness, and such investigation should be carried far enough to make the infant's competency apparent.

Intelligence and not age, is the proper test by which the competency of an infant as a witness must be determined, and, where it appears that such infant had sufficient intelligence to receive just impressions of the facts respecting which he is to testify, and sufficient capacity to relate them correctly, and has received sufficient instruction to appreciate the nature and obligations of an oath, he should be admitted to testify.

Where it appears to the trial judge that an infant offered as a witness does not sufficiently understand the nature and obligations of an oath, it is within his discretion to permit such infant to be properly instructed in that respect and afterward to be sworn, provided such infant be of sufficient age and intellect to receive instruction.

The common-law rule has been changed in this state, and belief neither in a Supreme Being nor in divine punishment is requisite to the competency of a witness.

The credit of a witness may be impeached by proof that he has made statement out of court contrary to what he has testified at the trial, but, in laying the foundation for such impeachment, it is necessary to inquire of such witness as to the time, place, and person involved in such supposed contradiction, before proof of such contradictions may be submitted to the jury; the statute requiring that 'the circumstances of the supposed statement, sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he made such statement.'

When the defendant in a criminal case offers himself as a witness therein, he thereby puts himself on the same footing as any other witness, and may be examined, cross-examined, or impeached as any other witness; but, while this is true, the state cannot introduce evidence to impeach the general character of the defendant, unless he has first put his character in issue.

An application for a postponement or a continuance is addressed to the sound judicial discretion of the trial court, and the ruling of such court either granting or denying such application will not be disturbed by an appellate court, unless an abuse of this discretion is clearly shown; but, where such an abuse is manifest, especially in a criminal case, it is the duty of an appellate court to interfere in the furtherance of justice.

It is error sufficient to reverse a judgment in a criminal case for the trial court to suffer counsel for the state, against proper objections of defendant, to state in his argument to the jury facts pertinent to the issue and not in evidence, or to comment upon facts calculated to prejudice the defendant which have no bearing whatever upon the issues, and evidence of which would have been excluded if offered, or to assume such facts to be in the case when they are not.

Remarks of counsel in the argument of a criminal prosecution, outside of the evidence and the reasonable bounds of argument, having no relation to the issues in the case, and intended or calculated to excite the passions and influence the minds of the jury against the defendant, should be promptly checked and prohibited by the trial court, and where such remarks are objected to by the defendant, and the trial court overrules such objections and refuses to interfere, an exception to such ruling will be well assigned, and will be sufficient ground for the reversal of the judgment.

COUNSEL

S. J. Hilburn, for plaintiffs in error.

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

OPINION

SHACKLEFORD C.J.

An information was filed in the criminal court of record for Volusia county, on the 10th day of October, 1905, against the plaintiffs in error, hereinafter referred to as the defendants, charging Buck Clinton with the willful and malicious burning of a certain dwelling house, therein described, and Edward Clinton with being an accessory before the fact of such burning.A trial was had before a jury in May, 1906, which resulted in the conviction of the defendants, and they were sentenced to confinement in the state prison at hard labor; Buck Clinton for a period of ten years, and Edward Clinton for a period of five years.The defendants seek to have this judgment and sentence reviewed here by writ of error, returnable to the present term.

The transcript of the record in this cause, including the bill of exceptions, is poorly prepared, and is not in compliance with the requirements on the rules of this court.Special rule 6, adopted by this court on the 2d day of March, 1905, found on page 33 of the Rules of the Supreme Court, prefixed to 51 Fla.(page xiv, prefixed to 37 South.), gives the plaintiff in error the option in criminal and habeas corpus cases to have the transcript of the record and the bill of exceptions 'made up, settled and certified, either in accordance with special rules 1,2and3 of these rules [37 South. x-xii], or in compliance with the provisions of rule 103 for the government of the circuit courts in common law actions, adopted at the April term of the Supreme Court, A. D. 1873,' found on page 34 of such rules, prefixed to 14 Fla.However, the respective modes of procedure prescribed in such special rules 1,2, and3andrule 103 must not be blended, as was done in the instant case, but one or the other of such modes must be selected and followed.Until the adoption of special rule 6, on the 2d day of March, 1905, rule 103 governed in the preparation of transcripts and bills of exceptions in criminal causes.It is the duty of a party resorting to an appellate court to see that his transcript of record is properly prepared, in compliance with the rules of court, and to make the errors complained of clearly to appear.SeeWorley v. Dade County Security Co.(Fla.)42 So. 527;Florida Land Rock Phosphate Co. v. Anderson,50 Fla. 501, 39 So. 392, and authorities therein cited;Akin v. Morgan,50 Fla. 173, 39 So. 534;Porter v. Ewing,51 Fla. 265, 39 So. 993.Also, seeState v. Madoil,12 Fla. 151, text 155.

The first assignment is as follows: 'The court erred in overruling the objections of the defendants to the testimony of Mitchell Aiken, and in permitting said Mitchell Aiken to testify in the case.'

The bill of exceptions discloses the following proceedings in regard to this witness:

'On the 1st day of May, 1906, during the term of said court, an issue joined between the said parties came on to be tried before a jury, and thereupon the plaintiff, to maintain an issue on its behalf, then and there produced as a witness, and offered to prove by him, that Edward Clinton, one of the defendants herein, told him (this witness) and Buck Clinton, the other defendant, to burn the Goodrich house, the property mentioned in the information or indictment in this case, and also that the said Buck Clinton, in company with this witness, did set fire to and burn said house on August 14, 1905.But, to the admission of said Mitchell Aiken as a witness, the defendants did then and there object, on the grounds that said witness was incompetent on account of his age and knowledge, and on account of his not having sufficient knowledge as to the meaning of an oath or the obligations thereof, and, for the purpose of testing his competency, the following questions were propounded to said witness, and he made the following answers thereto, respectively, viz.: 'Q.How old are you?A.Fourteen years old.Q.Do you know whether it is right to tell the truth or story?A.Yes, sir.Q.What will happen to those who tell lies?A.I don't know.Q.Do you know whether it is right to tell the truth or a falsehood?A.To tell the truth.Q.Have you ever been to school?A.Yes, sir.Q.How long did you go to school?A.I went four months this year.Q.How far along did you get in your books?A.I started at my a b c's and went through my

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