Cross v. State
| Decision Date | 02 March 1925 |
| Citation | 103 So. 636,89 Fla. 212 |
| Parties | CROSS v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied April 9, 1925.
Error to Circuit Court, Nassau County; George Couper Gibbs, Judge.
James G. Cross was convicted of manslaughter, and he brings error.
Affirmed.
Syllabus by the Court
Examination of jurors on voir dire may be conducted exclusively by judge. In the examination of jurors upon their voir dire a wide latitude of examination is allowable, and may be conducted exclusively by the judge. The purpose of such examination is to ascertain the qualifications of persons drawn as jurors and whether they would be absolutely impartial in their judgment.
Counsel may interpose objections to questions asked jurors on voir dire. Counsel employed in the case may upon the examination of proposed jurors upon their voir dire interpose objections to questions which they may deem to be improper, and should in doing so state succinctly the grounds of such objections.
Florida statutes fix no minimum age of competency for witness; when infant should be admitted to testify stated. No minimum age of competency for a witness is fixed by statute in this state. If a child has sufficient intelligence to receive just impressions of the facts respecting which he or she is to testify and sufficient capacity to relate them correctly, and has received sufficient instruction to appreciate the nature and obligation of an oath, the infant should be admitted to testify.
Assignments of error not argued in appellant's brief will not be sustained, if error is not so glaring as to require no argument. Assignments of error which are not argued in the brief of counsel representing plaintiff in error will not be sustained, if the error complained of is not so glaring as to require no argument to demonstrate it.
Instruction on subject of intoxication as bearing on specific intent or premeditation not objectionable, in view of evidence. An instruction to the jury in a murder trial upon the subject of intoxication as bearing upon a specific intent or premeditation is not objectionable as not relating to the evidence, where there was evidence tending to show that the accused had been drinking intoxicants a short while before the commission of the alleged crime.
Instruction favorable to accused upon any phase of case is not proper subject of complaint by him. An instruction to the jury favorable to the defendant upon any phase of the case is not a proper subject of complaint by him.
Evidence held sufficient to support verdict of manslaughter. Evidence examined and found sufficient to support a verdict of manslaughter.
Permitting child who knew nothing about religion to testify not erroneous. In view of Constitution, Declaration of Rights, § 5, securing religious liberty, and Rev. Gen. St. 1920, § 2703, making atheists competent to testify, in prosecution for murder permitting child who knew nothing about religion Supreme Being, or Divine Punishment to testify was not erroneous.
J. B. Stewart, of Fernandina, and Wm. A. Hallowes Jr., and Miles W. Lewis, both of Jacksonville, for plaintiff in error.
Rivers Buford, Atty Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.
During the spring term of the circuit court for Nassau county in 1924 the plaintiff in error, hereinafter referred to as the defendant, was tried for the murder of Philip P. Lord, which was alleged to have been committed on December 25, 1923.
The defendant pleaded not guilty. There was a verdict of manslaughter, and judgment entered. The defendant took a writ of error.
The tenth assignment of error rests upon an order made by the court to the sheriff during the examination of juror upon his voir dire, which order related to Mr. Miles W. Lewis, one of the defendant's counsel, and directed the sheriff to 'take' Mr. Lewis, 'unless he sits down.' It is contended in behalf of the defendant that the effect of the 'remark and order was to develop and create ill feeling and prejudice against defendant and defendant's counsel in the minds of the remaining jurors,' eight of whom were in the jury box and served in the case.
The incident arose in the following manner: A juror named Batten was being examined by the court upon his voir dire. It developed that he was a friend of the defendant, and had visited the latter in jail. The court asked the prospective juror if it would embarrass him to sit in the trial of his friend, the defendant. The juror replied that he did not 'see why it would.' The court then asked Batten if he believed beyond a reasonable doubt that the defendant was guilty of murder in the first degree would he, Batten, convict the defendant notwithstanding the fact of friendship between them. Mr. Batten replied in the affirmative. The court continuing the inquiry asked the following question:
The juror, replying, said:
'I don't think it ought to be.'
The judge replied as follows:
At this point the following colloquy occurred between Mr. Lewis and the court and Mr. Hallowes, of counsel for the defendant:
'Mr. Lewis: I want to except to that question.
'The Court: Object if you want to.
'Mr. Lewis: I object to it, because it is argumentative, for the first reason.
'The Court: I never asked you for your reasons----
'Mr. Lewis: I am going to give them.
'The Court: Sit down until I have finshed and I will hear you.
'Mr. Lewis: I have a right to be heard; I am going to be heard.
'The Court: State your objection, and the grounds of your objection, and the court will hear you at the proper time.
'Mr. Lewis: My objection to that question is that it is argumentative; that it is persuasive; that it is an effort to disquality this juror on the part of the court; that it is leading; that it puts words in the juror's mouth; and it seeks to disqualify the juror, who, by the record, shows that he is qualified and that he is intelligent, and that he is above bias.
'The Court: Your objection is overruled, and your exception is noted.
We do not view this incident in the light in which counsel for the defense seems to regard it. Why there should have been in the incident 'excitement that arouses emotions' we are unable to perceive. That there was any evidence of such on the judge's part the record fails to disclose.
The selection of a jury to try a case is a work which devolves upon the court. His purpose is to secure such jurors as are qualified for jury service and who are without bias or prejudice for or against the parties in the cause. A very wide latitude of examination by the court is allowable and indeed often necessary to bring to light the mental attitude of the proposed juror to one of the parties that it may be determined if such attitude renders the proposed juror unqualified.
The object of such examination, said this court in Savage & James v. State, 18 Fla. 909, is 'to ascertain the qualification of persons drawn as jurors and whether they would be absolutely impartial in their judgment.'
There is nothing in the statute to prohibit the court for exclusively burdening itself with the entirety of examination of persons drawn as jurors upon their yoir dire. See Jones v. State, 35 Fla. 289, 17 So. 284; Pinder v. State, 27 Fla. 370, 8 So. 837, 26 Am. St. Rep. 75.
In this labor, and in other phases of the trial, counsel may be heard to interpose objections to questions which they deem to be improper, and should, of course, state succinctly the grounds of such objections.
In view of the well-known ability and courteous demeanor of both the judge and the counsel engaged in the trial of this case, it is unnecessary for us to refer to the propriety with which all matters should be conducted in a courtroom and the freedom from suspicion of unfairness and prejudice on the judge's part which should characterize all proceedings.
Counsel cannot reasonably be said to have been within his rights nor within that respectful compliance with the judge's order to be seated until the question to the proposed juror was finished that counsel should have observed when he said that he had a right to be heard and that he intended to be heard. In that statement there appeared the first...
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