Elmore v. State, 73-225
Decision Date | 22 March 1974 |
Docket Number | No. 73-225,73-225 |
Parties | Josh ELMORE, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Samuel S. Jacobson of Datz, Jacobson & Dusek, Jacksonville, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was charged with first degree murder. At the close of the State's case the trial court entered a Judgment of Acquittal as to first degree murder and submitted the case to the jury on second and third degree murder and manslaughter. He was convicted of manslaughter and appeals, raising four points.
Appellant first alleges the trial court erred in failing to give Appellant's requested instruction on the lesser offense of aggravated assault. We agree. Appellant was charged with killing Carl Benjamin Olin, 'by shooting him to death with a pistol'. The evidence, without dispute, reflected the use of the pistol by Appellant. The case falls squarely within the holding of Appell v. State, Fla.App.1971, 250 So.2d 318, cert. den. 257 So.2d 257 (Fla.1971) where this court said, at page 320:
See also Herman v. State, Fla.App.1973, 275 So.2d 264; McCullers v. State, Fla.App.1968, 206 So.2d 30, and State v. Anderson, Fla.1972, 270 So.2d 353, 356 (dictum).
Since the case must be retried, we will consider the other points raised, in order to furnish guidance to the trial court in the new trial.
Secondly, Appellant argues that the trial court erred in refusing to admit into evidence the statement of an unidentified bystander who came to the scene with a shotgun and said to Appellant 'If you had give out I was going to help you'. The statement was made at the scene in the presence of both Appellant and the decedent, within seconds of the shooting while the decedent was staggering toward a post where he fell. The bystander was looking toward Appellant when he made the statement. The decedent, a large white man, had knocked Appellant, a small black man, down just prior to the shooting, had ignored warning shots, and was advancing on Appellant again when he was killed. The defense was self defense.
While statements made by third parties not produced as witnesses are generally objectionable as hearsay, the rule is not without exceptions. Where the statement was:
3. Was made at the scene of the homicide, in the sight or hearing of the accused or victim (Halfrich v. State, 122 Fla. 375, 165 So. 285 (1936)), and
4. Is relevant to a material issue in the case (as all evidence must be to be admissible-see, e. g., Williams v. State, Fla.1959, 110 So.2d 654, cert. den. 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86) then it is part of the res gestae and is admissible. Its weight becomes a matter for the jury. We hold that the statement was admissible and the court's refusal to admit it was error.
Thirdly, Appellant urges, and we concur, that the trial court committed error in denying Appellant the right to fully cross-examine Mrs. Betty Olin, decedent's widow, about the entirety of the observed altercation after she had testified for the State about a portion of it. Mrs. Olin, an eyewitness, testified about the details up to the point of the first shots. Her direct interrogation then abruptly ceased. Defense counsel sought to cross-examine her on her observation of the altercation past that point. The court, on objection by the State, refused to permit it.
The Florida Supreme Court has addressed itself to the question a number of times. In Savage and James v. State, 18 Fla. 909 (1882), the Court stated the principles, at page 957:
...
To continue reading
Request your trial-
Deparvine v. State
...of violence, made voluntarily and spontaneously, and made without any indication of reflection or premeditation); Elmore v. State, 291 So.2d 617, 619 (Fla. 4th DCA 1974) (applying a four-pronged test: the statement must be spontaneous, made by one who witnessed the act concerning which the ......
-
Nelson v. State, 77-541
...349 So.2d 731 (Fla.3d DCA 1977); see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1028, 35 L.Ed.2d 297 (1973) and Elmore v. State, 291 So.2d 617 (Fla.4th DCA 1974). trial) that Cindy Siegel had examined the clothing and had stated that it was not the clothing worn by her assailant, the j......
-
Young v. State, 75--995
...to by the investigating officer. See: Savage v. State, Fla.1882, 18 Fla. 909; Haager v. State, 83 Fla. 41, 90 So. 812; Elmore v. State, Fla.App.1974, 291 So.2d 617. Under the latter day Supreme Court decisions, including the most recent of State v. Terry, Fla.1976 (opinion filed February 25......
-
Dobbert v. State
... ... In Elmore v. State 13 the defendant was tried for murder and convicted of manslaughter; the Fourth District reversed the conviction for failure of the trial ... ...