Gray v. State
| Decision Date | 06 March 1900 |
| Citation | 28 So. 53,42 Fla. 174 |
| Parties | GRAY v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Jackson county; Evelyn C. Maxwell, Judge.
Albert Gray was convicted of manslaughter, and brings error. Affirmed.
Syllabus by the Court
1. A statement in a motion for a new trial is not self-supporting in view of a ruling of the court denying it.
2. Chapter 4400, Laws 1895, prohibits prosecuting officers from commenting before the court or jury upon the failure of an accused to testify as a witness in his own behalf, and it is the duty of trial courts to see that such impropriety is not committed.
3. After the state closed its testimony, the accused examined several witnesses in his defense, though he did not testify in his own behalf. The prosecuting officer, in his argument to the jury, stated that the evidence as it stood before them, unexplained and uncontradicted, although it did not point positively to the defendant, was sufficient to warrant a verdict of guilty. Held to be a permissible comment on the evidence as it existed, avoiding, as it did, any reference to the failure of the defendant himself to explain or contradict what had been introduced.
4. Near the body of a deceased, found in a road, a human track was seen leading away, with certain peculiarities. A witness for the state testified that about one month before the killing he saw tracks made by the accused, and they were the same as that found near the body. Held not to be objectionable on the ground of remoteness.
5. To show flight after a homicide, it is competent to prove by witnesses living so near the accused, and accustomed to see him so often when at home that a failure to see him there would tend to show absence, that he was not seen there after the killing.
6. Testimony having a tendency to prove a material circumstance in the case is material, though its bearing may be slight.
7. After the retirement of the jury under the charge of the court they returned into court, and requested to know whether, under the law, they must find a verdict of murder in the first degree or acquit, or whether they could find the accused guilty of some lesser offense, and the court re-read to them portions of the charge given bearing on the matter inquired about. Thereupon defendant objected to a word in the charge on the ground that it was indefinite, and the court added in writing, and read to the jury, the explanation of the word as insisted on by the defendant. Held, that the objection made was removed by the explanation given by the court.
8. A portion of a charge excepted to must be construed in connection with other portions given, and also the facts in evidence.
9. It is proper to refuse a portion of a charge asserting that the jury should know to a moral certainty that they have all the facts and circumstances before them before they can convict and if they feel, after considering the evidence, that some important matter of proof has been omitted, and their minds were not satisfied, this was a reasonable doubt, upon which they should acquit.
10. Testimony held sufficient to sustain the verdict.
COUNSEL Calhoun & Farley, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was indicted and tried for murder at the fall term, 1898, of the circuit court for Jackson county, and there was a mistrial. At the spring term of the court, 1899 he was again tried, and convicted of manslaughter, and from the sentence of the court for this offense a writ of error has been sued out.
Two of the assignments of error argued refer to charges alleged to have been given on the first trial of the case, in that the court failed to charge upon any degree of homicide except murder in the first degree, and also in giving a charge on the subject of an alibi, set out in the motion for a new trial. This motion was denied, and there is nothing before us to show what the court charged on the first trial. The statement in the motion for a new trial is not self-supporting, in view of the ruling of the court denying it, and there is no basis of support for such assignments of error. This disposition of them does not concede the right of plaintiff in error to assign errors on charges of the court on a former hearing that resulted in a mistrial, even if we had evidence of what the court then charged furnished by bill of exceptions properly made up, or by proper record entries.
Another assignment is that the court erred in refusing defendant's motion 'to strike out the first direct testimony of Melie Hamilton.' There is nothing in the record to show that a motion was made to strike out any evidence of the witness Hamilton, or that any objection was made to his evidence.
Again it is assigned as error that the assistant state attorney, in his argument before the jury, severely commented upon the fact that defendant made no statement in his defense, by using the following language, viz.: 'Gentlemen of the jury, the evidence as it stands before you, unexplained and uncontradicted, although it does not point positively to this defendant, is sufficient to warrant you in finding him guilty.' This objection arises on the record for the first time after verdict in a motion for a new trial, and in its support an affidavit of defendant was filed that the state attorney used the language quoted. The bill of exceptions does not recite that such language was used, but the supporting affidavit is therein set out. The act of the legislature (chapter 4400, Laws 1895) authorizing an accused to make himself a witness in his own behalf expressly directs that no prosecuting officer shall be permitted before the court or jury to comment on the failure of the accused to so testify, and no doubt can exist, under this statute, as to the duty of the court to see that no such impropriety is permitted. The prohibition of the statute is that no comment be made by the prosecuting officer before court or jury on the failure of the accused to testify in his own behalf, and the policy of the statute should not be violated, either directly or indirectly. The statute does not, of course, prohibit legitimate comment on testimony properly before the jury, and, in our opinion, the language used, conceding that it is properly before us, cannot strictly be regarded as a comment upon the failure of the accused to testify in his own behalf. After the state closed its testimony, the accused introduced several witnesses in his behalf, though he did not take the stand himself. We think the prosecuting officer could comment on the evidence as it existed before the jury, avoiding any reference to the failure of the defendant himself to explain or contradict what had been introduced. As to whether or not an affidavit is the proper way to establish or make known to this court that an improper comment was made by the prosecuting officer, or whether objection and exception should be made at the time such comment is indulged in, is not decided, as it is not deemed necessary.
The testimony for the state established that the deceased Richard McElroy, was found on the 8th day of September, 1898, in a public road, with his head badly contused, and in an unconscious condition, from which he never recovered. In the road where the body was found there were signs of a 'scuffle,' and a track was discovered leading up to a gate near the house of the accused, a short distance away. Witnesses stated that there was something peculiar about the track, the shoe having a piece on the toe in the nature of a half sole, and the heel on the right foot was run over on one side, and trimmed off. A state witness (Arthur Barnes), who saw the track leading to the gate, stated that he had not seen the accused right before the deceased was killed; did not know how long before; that he had not seen him since August; and the state attorney asked the witness what he saw about the shoe of the accused. This question was objected to on the ground that the time was too remote. The objection was overruled, and exception taken. The witness detailed a conversation between himself and the accused in reference to half-soling the latter's shoe, and further stated that afterwards he saw the track made by the accused, and it was the same peculiar track as that found in the road near where the deceased was found. The objection to the question...
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