Eldridge v. State

• Decision Date: 30 May 1891
• Citation: 9 So. 448,27 Fla. 162
• Parties: ELDRIDGE v. STATE.
• Court: Florida Supreme Court

9 So. 448

27 Fla. 162

ELDRIDGE v. STATE.

Florida Supreme Court

May 30, 1891

Error to circuit court, Volusia county, JOHN D. BROOME, Judge.

Syllabus by the Court

SYLLABUS

1. A plea in abatement setting up the pendency of another indictment in the same court against the defendant for the same offense charged in the indictment upon which he is put upon trial, is bad, and constitutes no ground for abating the prosecution.

2. In a prosecution of an editor of a newspaper for libel, and a publication in the same paper subsequent to the finding of the indictment is offered in evidence on the question of malice, some connection must be shown between the publication complained of and the publication offered in evidence, and if the subsequent publication tends to show ill will towards the person concerning whom the publication complained of is made and is of such a nature as to indicate a persistent disposition of hatred or ill will towards him, or if it indicates a part of a settled purpose to bring him into public hatred, contempt, or ridicule, and is sufficiently near in time to afford a natural inference that the same state of mind existed when the publication complained of was made, it is admissible.

3. A witness cannot be cross-examined as to any fact which is collateral or irrelevant to the issue merely for the purpose of contradicting him by other evidence if he should deny it thereby to discredit his testimony.

4. The motives, interest, or animus of a witness are not collateral matters, and these may be shown and considered by the jury in estimating the credibility of a witness, and as to such matters he may be contradicted.

5. It is competent to show as a fact feelings of hostility on the part of a witness, or the state of a witness' mind, in respect to the person against whom he testifies, and the jury may consider this hostility or bias in estimating his testimony; but an inquiry into the conduct and acts of parties producing hostility not relating to the matters in issue should not be permitted.

6. The use of opium cannot be introduced to impair the credit of a witness unless it be shown that the witness was under the influence of it when examined, or when the litigated event occurred, or that his mind was impaired generally by the use of it.

7. The language of a charge 'that the jury cannot infer that the libel was published with good motives; that good motives must be proved the same as any other fact; and, if the defendant has failed by competent evidence to prove that the libel was published with good motives, they must reject all evidence going to prove the truth of the libel and convict the defendant,'--is calculated to mislead the jury into the belief that they are never authorized to infer good motives from the facts and circumstances given in evidence in a case.

COUNSEL B. M. Miller, for plaintiff in error.

William B. Lamar, Atty. Gen., J. D. Beggs State's Atty., and Alex. St. Clair-Abrams, for the State.

OPINION

MABRY J.

At the spring term, 1889, of the circuit court for Volusia county Lewis H. Eldridge, plaintiff in error, was indicted for publishing a libel of and concerning Della V. Smith, wife of one B. B. Smith, and a resident of Volusia county. The libel is alleged to have been published in the form of a newspaper article in an issue of the De Land Weekly News, on April 20, 1889, and as set out in the indictment is as follows: 'Circuit court. Making the fur fly from the backs of the wicked. No true bill against B. B. Smith. The Smith-Douglass case. State vs. B. B. Smith. Assault with intent to murder. No true bill. This is the famous Smith-Douglass case, of Daytona. Smith is a dentist, who has resided in that town for some time. On account of the incompatibility of temper, himself and wife had not been living together for some months. Lately Smith had had reason to suspect that his wife and J. W. Douglass, captain of the Halifax Rifles, U.S. surveyor, ex-deputy sheriff, town assessor of Daytona, and right bower of Bill Jackson, were becoming too affectionate. On the night of February 13, 1889, Smith, accompanied by his father, went to the residence of his wife, and there caught that lady and Douglass in a very embarrassing situation. Smith and Douglass had a scuffle, in which the former's pistol went off, the ball hitting Douglass in the arm. When the case came up before the jury, that body very properly refused to find a true bill against Smith, whereupon Douglass went before Justice Dore, and had a warrant sworn out against Smith. Smith was arrested, but gave bond, and is now at liberty. This case has caused a good deal of interest all over the county. Smith says that when he was tried before Justice Packett, in Daytona, that Bill Jackson went to that officer and tried to bulldoze him into putting his (Smith's) bail up to $1,000. Smith has the most positive proof of his wife's guilt; and when one looks at the hang-dog countenance of Douglass, and considers his unsavory reputation, he cannot help but think that the lady had very poor taste. Jackson's conduct in this affair, aiding and abetting a man who has added adultery to his other numerous failings, is a fitting chapter to the balance of his career.'

On the indictment is indorsed the following: 'Now comes the defendant Lewis H. Eldridge, and acknowledges identity, waives arraignment, and pleads in abatement in open court. May 2d, 1889. LEWIS H. ELDRIDGE.' On the same day defendant below filed the following plea in abatement: 'Now comes the defendant Lewis H. Eldridge, in his own proper person, and, having heard said indictment read, for plea to said indictment saith that this court ought not to take cognizance of this indictment, for he says that there is another indictment pending against this defendant in this court for the same offense alleged and set forth in this indictment, and this the defendant is ready to verify; whereupon he prays judgment that said indictment be dismissed, and that he be discharged.' A demurrer was interposed to this plea by the state on the grounds 'that the fact that there are two indictments pending against the defendant, charging the same offense, is not sufficient ground for abating either; that the plea does not set up that the libel charged in each indictment was against the same person; that the plea is bad in law.' This demurrer was sustained by the court, and defendant excepted.

The defendant was at the fall term, 1889, of said court tried upon said indictment, and a verdict of guilty returned against him. A motion was made by defendant below to set aside this verdict for reasons therein stated, which motion was overruled by the court, and defendant sentenced to pay a fine of $400, and costs.

During said term, and in open court, defendant below entered an appeal from said judgment and sentence to this court, and herein assigns the following errors: 'First, the circuit court erred in admitting in evidence the issue of the De Land Weekly News of April 27, 1889; second, the circuit court erred in admitting testimony upon the cross-examination of the defendant's witness Belon B. Smith as to conversations had by said witness with Dr. G. M. Wallace concerning the marital relations of said witness with his wife, Della V. Smith;third, the circuit court erred in admitting testimony upon the cross-examination of said witness B. B. Smith as to the divorce proceedings between himself and his former wife, Della V. Smith, and as to the marital relations between said parties previous to the bringing of such divorce proceedings, and as to the conduct and actions of said witness prior to and subsequent to such divorce proceedings; fourth, the circuit court erred in refusing to strike out such testimony upon the motion and request of the defendant; fifth, the circuit court erred in admitting the testimony of the witness on the part of the state, Della V. Smith, in relation to the divorce proceedings between herself and Belon B. Smith, and in relation to the marital conduct of said Belon B. Smith;sixth, the circuit court erred in refusing to strike out such testimony upon the motion and request of the defendant; seventh, the circuit court erred in admitting in evidence the letter marked exhibit 'C' and the testimony of the witness Della V. Smith in relation thereto; eighth, the circuit court erred in admitting in evidence the letter marked exhibit 'D' and the testimony of the witness Della V. Smith in reference thereto; ninth, the circuit court erred in admitting in evidence the letter marked exhibit 'E' and the testimony of the witness Della V. Smith in reference thereto; tenth, the circuit court erred in admitting the testimony of the state's witness Dr. G. M. Wallace in reference to conversations between himself and the witness Belon B. Smith;eleventh, the circuit court erred in refusing to allow the defendant to introduce evidence to impeach the general moral character and the character for truth and veracity of the state's witness Della V. Smith, and to show that said Della V. Smith testified falsely; twelfth, the circuit court erred in giving in charge to the jury the instructions requested by the state numbered 2, 3, 6, 7, 8, 9, 10, and 11; thirteenth, the circuit court erred in refusing to give in charge to the jury the instructions requested by the defendant; fourteenth, the circuit court erred in giving in charge to the jury instructions numbered 2, 3, 4, 5, 6, 7, 8, and 9, prepared by the court; fifteenth, the circuit courterred in denying defendant's motion to set aside the verdict and for a new trial;sixteenth, the verdict was contrary to the law and the evidence.'

There is in the record here a duly-signed bill of exceptions, by which we are advised of the evidence introduced on the...