Covington v. State

• Decision Date: 24 January 1941
• Citation: 145 Fla. 680,200 So. 531
• Parties: COVINGTON v. STATE.
• Court: Florida Supreme Court

200 So. 531

145 Fla. 680

COVINGTON v. STATE.

Florida Supreme Court, Division B.

January 24, 1941

Rehearing Denied, Special Division B, Feb. 21, 1941.

Robert Covington was convicted of manslaughter and he appeals.

Affirmed.

On Petition for Rehearing.

Appeal from Circuit Court, Sarasota County; W. T. Harrison, Judge.

COUNSEL

Randolph Calhoun, of Sarasota, for appellant.

George Couper Gibbs, Atty. Gen., and William Fisher, Jr., Asst Atty. Gen., for appellee.

OPINION

PER CURIAM.

On November 14, 1939, the appellant, Robert Covington, was indicted for the crime of murder in the second degree by a grand jury of Sarasota County, Florida, for the unlawful killing of Mary Lee Covington on the 18th day of August 1939, in Sarasota County. The defendant below was duly arraigned and entered a plea of not guilty; was placed upon trial and by a jury of said county convicted of the crime of manslaughter. A motion for a new trial was made and by the lower court denied and the trial court sentenced the defendant to serve a period of fifteen years at hard labor in the State Prison. From this judgment of conviction an appeal has been perfected to this Court and several assignments made for a reversal thereof.

Counsel for the defendant below filed a motion to quash the indictment on the grounds: (a) The indictment was vague uncertain and indefinite; (b) the indictment fails to follow the form prescribed by the Criminal Code; (c) the indictment fails to describe the pistol with sufficient accuracy. The lower court entered an order denying the said motion to quash and this adverse ruling is assigned as error in this court. Section 279 of Chapter 19554, Acts of 1939, Laws of Florida, commonly referred to as the Criminal Code, prescribes analogous forms of indictments or informations charging the crime of murder in the second degree. It is our conclusion that the essential legal elements appear in the indictment sufficient to sustain the order of the lower court. See Wolf v. State, 72 Fla. 572, 73 So. 740; Sallas v. State, 98 Fla. 464, 124 So. 27.

The second question is viz:

'Was it error for the trial court to allow a duly qualified physician and surgeon to testify that the amount of a drug administered to the deceased was not sufficient to affect the mental condition of the deceased just prior to her death, when the doctor's testimony was to the effect that he had prescribed a certain amount of the drug, that the hospital record showed that only the prescribed amount had been administered to the deceased, and that the doctor saw the deceased and talked to her at the time of her dying declaration shortly before her death and had an opportunity to and did observe her condition at that time?'

The record shows that Mary Lee Covington sustained a pistol wound shortly after midnight while in her bedroom with the defendant. She was taken to a hospital and operated on and the attending physician was of the opinion that the wound was fatal, and after the operation she grew gradually worse and died around 5:30 P. M. It was necessary to administer morphine and earlier in the day the deceased made conflicting statements as to who shot her, but shortly prior to her death she stated that death was imminent and recovery impossible and while in this condition she stated that the defendant, her husband, inflicted the fatal wound. It was contended that the admission of this testimony was erroneous because the deceased was under the influence of morphine and thereby mentally incapacitated when she stated the defendant, her husband, shot her. Dr. Patterson was the attending physician and gave the challenged testimony. Counsel relies on the case of Southern Utilities Co. v. Murdock, 99 Fla. 1086, 128 So. 430. It was the physician's opinion that the amount of morphine administered did not affect the mental processes of the deceased at the time she gave the challenged testimony.

It is a mixed question of law and fact to be determined by the trial court prior to the admission into evidence of a dying declaration. It is fundamental that the State must show that the decedent at the time knew that his death was imminent and inevitable. See Morris v. State, 100 Fla. 850, 130 So. 582. 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 and offered in evidence was in fact a dying declaration. See Clemmons v. State, 43 Fla. 200, 30 So. 699. There is in the record testimony to show that the decedent 'abandoned hope of recovery'; that death was imminent; 'that she could not get well' and later she died. She stated that her husband, the defendant, shot her. While it is true that the facts surrounding the decedent could have been more elaborately detailed or developed by the State prior to the introduction of the testimony of the dying declaration, we think the same is legally sufficient to withstand the assault made thereon. See Anderson v. State, 133 Fla. 63, 182 So. 643; Handley v. State, 125 Fla. 632, 170 So. 748; Davis v. State, 137 Fla. 423, 187 So. 783.

Counsel for appellant, at the close of the State's case, moved the Court for an order directing the jury to find a verdict of not guilty in behalf of defendant on the ground that the State of Florida had failed to adduce sufficient testimony upon which a verdict in behalf of the State of Florida could rest; or, in other words, that the evidence offered was legally insufficient to support a verdict for the State. The lower court promptly entered an order denying or overruling the said motion and this adverse ruling is assigned as reversible error in this Court. It is unnecessary and no useful purpose could be served by a discussion of the testimony appearing in the record, the legal sufficiency of which is challenged by the motion. The evidence has been carefully read and considered, and we think the ruling of the lower court was eminently correct in submitting the issue to the jury. See Holland v. State, 129 Fla. 363, 176 So. 169; Victor v. State, 141 Fla. 508, 193 So. 762.

The next question posed is viz:

'Should the trial court have allowed testimony of two defense witnesses relative to an experiment to go to the jury when that testimony was such as to attempt to impeach certain state witnesses by means of experiments when it appeared from the evidence of the two defense witnesses that the experiments were made some eight months after the crime was committed and the conditions and surroundings at the time of the experiments were not shown to be similar to conditions and surroundings at the time of the homicide?'

The record shows that the defendant offered the testimony of two witnesses who had been to the scene of the homicide and remained there for some time and observed the locus in quo and were ready to testify that much of the...