Gibson v. State

• Decision Date: 04 October 1966
• Docket Number: No. H-190,H-190
• Citation: 191 So.2d 58
• Parties: Walter Louis GIBSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 58

191 So.2d 58

Walter Louis GIBSON, Appellant, v. STATE of Florida, Appellee.

No. H-190.

District Court of Appeal of Florida, First District.

Oct. 4, 1966.

Rehearing Denied Nov. 8, 1966.

T. Edward Austin, Jr., Public Defender, and Charles J. Franson, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and Thomas E. Boyle, Asst. Atty. Gen., for appellee.

RAWLS, Chief Judge.

Appellant was informed against and tried for the offense of second degree murder. At the conclusion of the trial upon defendant's motion the court reduced the charge to manslaughter. This appeal is from a judgment of guilty entered pursuant to a jury verdict.

Appellant's sole point on appeal is, Did the trial court err in allowing, over defendant's objections, the wife and sister of the deceased to testify as to their relationship to the deceased?

Defendant and one Levi Adkins had an altercation in a pool room. Adkins died as a result of defendant's cutting him with a knife. A number of people were present in the pool room at the time of the fight. Two of these witnesses, Jenkins and Morris, knew decedent and each testified during the course of the trial. Another witness, Fred Lewis, testified that he rode in the ambulance with Adkins from the pool room to the medical center.

The first witness called by the State was Lola Mae Adkins, the widow of the deceased, who testified as follows:

'Q State your name, please.

'A Lola Mae Adkins.

'Q Now, Mrs. Adkins, keep your voice up, if you will, please, so we can hear you. Keep your voice up so we can hear. Did your know Levi Adkins?

'A Yes, Sir.

'Q I can't hear you.

'A Yes sir.

'Q Were you related to him?

'Mr. RIPLEY: To which the defendant objects, if the Court pleases. It's immaterial and irrelevant whether she was related to him or not. She identified the body and that is all that is necessary and we object to any further interrogation along the lines--Was she a relative of his?--because it's immaterial and irrelevant and it might be prejudicial.

'COURT: Overruled.

'BY MR. TAYLOR:

'Q Were you related to him?

'A I am his wife.

'MR. RIPLEY: Now, Your Honor, we move to strike the answer and ask for a mistrial because it shows something prejudicial that was not necessary.

'COURT: Overruled and denied. Proceed.'

The next witness called by the State was Marie Dixon who testified as follows:

'BY MR. TAYLOR:

'Q Your name, please?

'A Marie Dixon.

'Q And where do you live?

'A 2811 Venus Street.

'Q Is that in Jacksonville?

'A Yes, sir.

'Q Did you know Levi Adkins?

'A Yes, sir.

'Q Are you related to him?

'A Yes, sir.

'MR. RIPLEY: Now, Your Honor, we object to whether she is related to him or not. It's immaterial and irrelevant.

'COURT: Well, it is insofar as identification alone, except that it may corroborate the fact that she did know him and that is the sole purpose for which I will overrule your objection.

'BY MR. TAYLOR:

'Q How was he related to you?

'A He was my brother.

'MR. RIPLEY: Now, Your Honor, we move to strike that she was the sister and request that the Court instruct the jury not to consider that in arriving at their verdict and ask for a mistrial.

'COURT: Overruled. Denied. Proceed.'

In reviewing the foregoing it is clear that the State at the outset submitted proof that decedent was survived by a wife and a sister. The State insists that the identity of decedent was an element to be proved by the prosecution and that testimony as to relationship showed that the witness was in a position to furnish such information. Such contention might well be sustained as to one of the witnesses. However, this record does not disclose any controversy as to the identity of the decedent nor any reason for 'doubly proving' such identity by members of his immediate family.

In Melbourne v. State, 51 Fla. 69, 40 So. 189 (1906), the state attorney asked this question, referring to the deceased, 'Did he have a wife?' The Supreme Court held that the fact that deceased did or did not have a wife had no relevancy or pertinency to any issue in the case, and since an objection was made, its development at this trial could have no other effect than to prejudice the defendant with the jury.

In Rowe v. State, 120 Fla. 649, 163 So. 22 (1935), the state asked a witness a question concerning deceased's family. There the Supreme Court held:

'The fact that deceased may have had a family is wholly immaterial, irrelevant, and impertinent to any issue in the case.'

In Hathaway v. State, 100 So.2d 662 (Fla.App.3d, 1958),...