Fine v. State
| Decision Date | 19 November 1915 |
| Citation | 70 Fla. 412,70 So. 379 |
| Parties | FINE v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Dade County; Geo. Couper Gibbs, Judge pro hac vice.
Herbert E. Fine was convicted of murder, and brings error. Reversed and new trial granted.
Additional Syllabus by Editorial Staff.
Syllabus by the Court
In the trial of an indictment for murder, where the defendant's defense is self-defense and the evidence is conflicting as to who began the difficulty, the defendant may introduce character witnesses to show that the general reputation of the deceased for peace and quiet was bad.
Upon the cross-examination of a character witness it is permissible to inquire into the rumors and reports of particular transactions upon which the witness bases his conclusions as to the reputation of the person concerning whom he testifies. Such examination is permitted for the purpose of testing the credibility of the witness.
Where the trial court errs in the rejection of evidence which may affect the credibility of a witness to a material fact, such ruling constitutes reversible error.
It is not error for the trial court to refuse requested instructions which are substantially covered by charges which the court had given.
Upon the trial of an indictment for murder where the facts show that the homicide was not committed under circumstances which might constitute murder in the third degree, it is not error on the part of the trial court to fail to instruct the jury upon that degree of murder.
COUNSEL Geo. A. Worley & Son, of Miami, for plaintiff in error.
T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
The plaintiff in error was convicted at the Spring term, 1914, of the circuit court for Dade county of the murder of Harry Harmon, and sentenced to death.
The defendant, referred to above as the plaintiff in error, and the deceased lived in Ft. Lauderdale, where the latter conducted a garage. Some time prior to the fatal difficulty between the defendant and Harmon, in which the latter was killed, the two men had a dispute about a bill which the deceased had rendered for repairs on the defendant's automobile. On the 6th of December, 1913, the defendant accompanied by his wife, who was enciente, their two children and two young ladies, drove in the defendant's automobile from Ft. Lauderdale to Palm Beach. On the return trip the automobile broke down a few miles from Ft. Lauderdale. The accident occurred about 7 o'clock p. m. The defendant sent word to a Harry Baker or a Mr. Crim, by some one passing at the time, to come for him. The message was delivered to Baker, who was at Harmon's garage. Baker got his car ready, and with Harmon and a boy named Bailey started for the disabled car. It does not appear that Harmon knew at that time that it was the defendant who wanted assistance. The rescuing party arrived, fastened a tow rope to the disabled machine, and started for Ft. Lauderdale, the ladies and children getting into the car in front with Baker, while the defendant, Harmon and the Bailey boy rode in the rear car. It became necessary to ask the assistance of some one who was passing in a car to pull the defendant's car into town, because the load was heavy and the broken machine was difficult to pull. Upon arriving in town the defendant's automobile was taken to Harmon's garage upon the latter's order, over the defendant's protest, it appears, and when the party arrived at the garage an altercation arose between the defendant and the deceased over the act of the latter in bringing the machine to the garage, and the debt which the defendant owed the deceased for work previously done. There was evidence to show that the language of Harmon on this occasion was profane and very abusive, so much so that Mrs. Fine, who had become excited and nervous, requested Mr. Harmon to desist from the use of such language. It appeared that he apologized to Mrs. Fine, and after the apology continued the use of profane and abusive language within the hearing of Mrs. Fine, the children, and the two young women. The defendant being unable to get his machine away from the garage, transferred some packages from his machine to Baker's, and with his family and the two young women returned home in Baker's automobile. Before leaving the garage Fine said he took a pistol out of one of the pockets in the tonneau of his car and placed it in his shirt near his belt. When Baker returned and put up his machine Harmon left the garage.
When the defendant returned with his family to his home, he left again, soon after, with his two children, intending as he said, to find the marshal of the town and procure the arrest of Harmon. At a place near and in front of the post office he met a Mr. Reed Bryan and was talking to him when Harmon came up. The defendant and Harmon became engaged in a wordy altercation in which profanity was used by each. The marshal of the town, Morgan Bryan, came along and tried to quell the disturbance by threatening to arrest both of the angry men. It was at this time that the deceased applied to the defendant a harsh and offensive epithet, and the defendant replied in language even worse. There was evidence to show that Harmon was standing with his right hand in his coat pocket, and as the defendant replied, took a step forward. The defendant drew his pistol and fired at the deceased, who received the wound in his abdomen which resulted in his death.
The court admitted evidence on behalf of the defendant tending to show that the general reputation of Harmon for peace and quiet in the community was bad. In rebuttal the state produced as a witness Dr. Stafford, who testified that the general reputation of the deceased for peace and quiet was good. Upon cross-examination, the defendant by his counsel propounded to the witness the following question: ' To which question the state objected upon the ground that the question 'calls for particular facts and acts.' The objection was sustained, and the defendant excepted to the court's ruling. C. D. Kitridge was also called by the state in rebuttal, who testified that the reputation of the deceased for peace and quiet was good. Upon cross-examination, the defendant by his counsel asked if he had not heard of the deceased 'being in repeated fights around Ft. Lauderdale there.' This question was objected to by the state, upon the grounds that the evidence sought was 'immaterial and irrelevant; not pertinent to the issues in this case; dealing with particular acts and facts; and relating to a case or matter not relevant to the case now being tried.' The objection was sustained, and defendant excepted.
The witness Reed Bryan, called by the state in rebuttal, testified that the reputation of the deceased for peace and quiet was as 'good as the average citizen of that place.' He also, was asked upon cross-examination whether he had not heard of the deceased 'having several fights around Ft. Lauderdale,' to which the state made the same objection, which the court sustained and the defendant excepted. These rulings constitute the first, second, and fifth assignments of error.
The question is thus presented whether upon cross-examination of a character witness, who testifies to the good or bad reputation of one for peace and quiet, the witness may not be interrogated as to particular rumors or statements of individuals in order to ascertain the source of the witness' information and to discredit him by showing his knowledge to be inadequate.
Upon the trial of an indictment for murder where the defense is self-defense, the character of the deceased as to peace and quiet frequently becomes a material subject for investigation. If the evidence, as in this case, is conflicting upon the question as to who began the difficulty, or whether the deceased's conduct or actions just prior to the encounter reasonably justified the belief that he was about to make an assault upon the accused, evidence as to the general reputation of the deceased for peace and quiet may lead the jury to a correct conclusion as to the guilt of the accused, by enabling them to determine who really began the difficulty, and the reasonableness of the defendant's belief as to imminent danger to himself of great bodily harm or death from the deceased. See Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232; Hathaway v. State, 32 Fla. 56, 13 So. 592; Hubbard v. State, 37 Fla. 156, 20 So. 235; Lane v. State, 44 Fla. 105, o2 So. 896; Sylvester v. State, 46 Fla. 166, 35 So. 142; 1 Wigmore on Evidence, § 63.
In this case the defendant had offered evidence tending to show that the general reputation of the...
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Wadsworth v. State, 596
...317; People v. Paisley, 1963, 214 Cal.App.2d 225, 29 Cal.Rptr. 307. It is the community's opinion of one's character, Fine v. State, 1915, 70 Fla. 412, 70 So. 379, which, in part, has been formed by one's habits or customs. "Character' is distinct from reputation,' Fine v. State, supra; Has......
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...v. State, 55 Fla. 134, 46 So. 176; Moore v. State, 59 Fla. 23, 52 So. 971, and Fails v. State, 60 Fla. 8, 53 So. 612. In Fine v. State, 70 Fla. 412, 70 So. 379, 382, the Court, in its opinion, 'The court did not instruct the jury as to the definition of murder in the third degree, which, un......
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