Everett v. State

• Decision Date: 22 May 1894
• Citation: 33 Fla. 661,15 So. 543
• Parties: EVERETT et al. v. STATE.
• Court: Florida Supreme Court

15 So. 543

33 Fla. 661

EVERETT et al. v. STATE.

Florida Supreme Court

May 22, 1894

Error to circuit court, Alachua county; W. A. Hocker, Judge.

William H. Everett and Madison Everett were convicted of murder, and bring error. Affirmed.

Raney C.J., dissented.

Syllabus by the Court

SYLLABUS

1. A joint indictment against two persons, charging by proper averments the commission of crime by the one, and that the other was present, aiding, abetting, and assisting in the commission of the said crime, is sufficient as to the latter without repeating in the allegations as to him the acts that constitute the crime charged.

2. Section 1094, Rev. St., as adopted and now in the office of the secretary of state, contained the following provision viz.: 'Married persons shall be competent witnesses for or against each other in civil cases wherein either of them is a party and is allowed to testify.' This provision was not in the Revised Statutes as published, but in the construction of said statutes, in connection with the legislation of 1891, such provision must be considered as a part of said revision.

3. Chapter 4029, Acts 1891, on the subject of married persons testifying in civil cases, not only includes the provisions of section 1094, as contained in the Revised Statutes as adopted, but is more extensive as to permitting such persons to testify in such cases; and, according to the rule of construction prescribed by the legislature in section 1, c 4055, Acts 1891, must be regarded as superseding said section 1094 when the Revised Statutes went into effect.

4. Chapter 4029, Acts 1891, providing that in the trial of civil actions neither husband nor wife shall be excluded as witnesses where either of them is an interested party to the suit pending, and section 2863, Rev. St., that 'the provisions of law relative to competency of witnesses in civil cases shall obtain also in criminal cases,' do not conflict with each other, and should be construed in harmony as parts of one and the same body of statutory law enacted by the same legislative body at the same session.

5. Under chapter 4029, Acts 1891, and section 2863, Rev. St the rule as to the competency of husband and wife to testify for or against each other in civil cases will apply also to criminal trials. As to the application of said rule between husband and wife in civil cases to criminal trials.

COUNSEL R. W. & W. M. Davis, for plaintiff in error.

W. B. Lamar, Atty. Gen., for the State.

OPINION

MABRY J.

The plaintiffs in error were jointly indicted in May, A. D. 1893, for the murder of J. Fletcher Tillman, and, after arraignment and trial, William H. Everett was convicted of murder in the first degree, and recommended to the mercy of the court, and Madison Everett was convicted of murder in the third degree.

William H. is indicted as principal in the first degree, and Madison as being feloniously present, aiding, inciting, abetting, and assisting the commission of the murder.

One of the assignments of error here is that 'the court erred in admitting, over the objections of the defendants' counsel, any testimony against Madison Everett under the indictment, he being charged as principal by being feloniously present, aiding, abetting, inciting, and assisting, it not being charged or alleged how he aided, abetted, incited, and assisted.' After the usual formal allegations in indictments for murder, the one here charges that William H. Everett and Madison Everett, on a certain day and year, in the county and circuit mentioned, 'with force and arms, at and in the county of Alachua aforesaid, did, without authority of law, willfully, feloniously, of their malice aforethought, and from a premeditated design to effect the death of one J. Fletcher Tillman, make an assault upon the said J. Fletcher Tillman, and a certain pistol which then and there was loaded with gunpowder and leaden bullets, and by him, the said William H. Everett, had and held in his hand, he, the said William H. Everett, did then and there unlawfully, willfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said J. Fletcher Tillman, shoot off and discharge at and upon the said J. Fletcher Tillman, thereby, and by thus striking the said J. Fletcher Tillman with two of the leaden bullets aforesaid, inflicting on and in the head of him the said J. Fletcher Tillman, two mortal wounds, of which said two mortal wounds the said J. Fletcher Tillman then and there instantly died; and that the said Madison Everett, at the time and place of the commission of the said murder and felony aforesaid, was feloniously present, then and there aiding, inciting, abetting, and assisting the said William H. Everett the said murder and felony to do and commit; and so the said William H. Everett and the said Madison Everett did, in manner and form aforesaid, without authority of law, willfully, feloniously, of their malice aforethought, and from a premeditated design to effect the death of the said J. Fletcher Tillman, kill and murder the said J. Fletcher Tillman.' No attack was made on the indictment before trial, and the objection urged, under the assignment of error mentioned, is not to any designated part of the evidence introduced by the state against Madison Everett, but it is contended that no testimony of any kind should have been admitted against him, because the indictment does not allege how he aided, abetted, incited, and assisted in the commission of the offense. The manner in which the killing was effected by William H. Everett, it will be seen from the part of the indictment copied, is alleged, and Madison Everett, it is charged, was feloniously present, aiding, assisting, and abetting in the commission of the felony. The defendant Madison Everett pleaded to this indictment, and went to trial on it, and we think it is entirely sufficient to authorize the admission against him of all competent evidence bearing on the case.

Another assignment of error discussed by counsel for plaintiffs in error is that 'the court erred in allowing the wife of William H. Everett, defendant, to testify against him.' After the testimony for the state in chief had been introduced, and the defendants had made voluntary statements in their behalf to the jury, Mrs. Ellen Everett, wife of the defendant William H. Everett, was called as a witness on the part of the state to testify in rebuttal of the statement made by her husband. An objection was made by defendant that she was not a competent witness, and, this objection being overruled, an exception was duly noted. It appears that for several months before the deceased was killed, and up to the time of the trial, William H. Everett and his wife had lived separate and apart from each other, and this separation according to his statement before the jury, was brought about by reason of improper relations between his wife and the deceased. The defendant William H. Everett stated that his wife had made to him certain admissions and confessions of such improper relations, and Mrs. Everett was permitted in her testimony to contradict her husband's statement in the particulars mentioned. The exception taken and urged here is confined entirely to the competency of the wife to testify at all in the case. Acts 1891, c. 4029 (page 968, Append. to Rev. St.), provides 'that an act entitled 'An act to allow married women to testify in all civil cases where their husbands are parties and not disqualified,' the same being chapter 3124 of the Laws of Florida, approved March 7th, 1879, be amended so as to read as follows: 'Section 1. That in the trial of civil actions in this state, neither the husband nor the wife shall be excluded as witnesses where either the said husband or wife is an interested party to the suit pending. Sec. 2. That all laws or parts of laws in conflict with this act be and the same are hereby repealed.” Section 2863 of the Revised Statutes reads as follows: 'The provisions of law relative to the competency of witnesses in civil cases shall obtain also in criminal cases.' For plaintiffs in error it is contended that Acts 1891, c. 4029, is not in force, for the reason that it is an amendment of chapter 3124, Acts 1879, and that this latter act was entirely omitted from the revision of the statutes submitted to the legislature. It is provided in the latter part of the first section of the act of 1891 adopting the Revised Statutes, c. 4055, that 'statutes passed at this session of the legislature shall not be repealed or affected by said revision, but shall have full effect as if passed after the enactment of said revision, except those acts passed at this session which are amendatory of laws omitted from the said revision.' Counsel insist that chapter 4029 is amendatory of law omitted from the revision, and is therefore expressly repealed by the latter when it went into effect. This contention is based upon a mistaken view of the provisions contained in the Revised Statutes submitted by the commissioners and enacted by the legislature in reference to the subject-matter of chapter 4029, Acts 1891. By referring to the Revised Statutes that accompanied the bill adopting them, and now in the office of the secretary of state, we find that section 1094, as therein arranged, reads as follows, viz.: 'Married persons shall be competent witnesses for or against each other in civil cases wherein either of them is a party and is allowed to testify.' This provision we do not find in the Revised Statutes as published, and its omission may be accounted for on the theory that the commissioners considered it repealed or superseded by chapter 4029, Acts 1891, as reference is made to this act under the number of the section mentioned. ...