Haager v. State
| Citation | 90 So. 812,83 Fla. 41 |
| Parties | HAAGER v. STATE. |
| Decision Date | 23 January 1922 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.
William R. Haager was convicted of murder in the second degree, and he brings error.
Affirmed.
Syllabus by the Court
Refusal to permit witness, on cross-examination, to retire and refresh memory from memorandum, and to be recalled, held not error. It is not error for the court to refuse to permit a witness, undergoing cross-examination, to retire from the stand and refresh his memory by examining a memorandum previously made by him of circumstances about which he testified, and recall him for further cross-examination after he has done so.
Party may attack credibility as to memory of events by making the witness his own and requiring production of record in his custody. Where a party desires to attack the credibility of a witness' testimony, or to show that his memory of events about which he testified was vague and uncertain, it may be done by making the witness his own, and requiring him to produce the record if it is in his custody.
District attorney should not interrupt cross-examination of a witness at critical point. It is not proper for a state attorney to interrupt the cross-examination of a witness and make a suggestion as a critical point in the development of the cross-examination, as he may thus save and protect a false witness from betraying himself, but, where the record discloses that the interruption did not have that effect, it is not such conduct on the part of the state attorney as calls for a reversal on that account.
Sustaining general objection to a question without requiring state's attorney to give grounds held error, but harmless. Where the record discloses that no harm was done to a defendant by the court sustaining a general objection to a question without requiring the state attorney to give the grounds for his objection, although error, it is harmless.
Proper to examine witness as to everything said and done by the parties to a homicide relating to the difficulty. It is proper on cross-examination to interrogate a witness about everything that is said or done by the parties to a homicide relating to the difficulty, from the beginning to the end where part of the events have been testified to on direct.
State's attorney cannot limit investigation into entire transaction by asking witness about only one part of difficulty. The state attorney cannot limit investigation into the entire transaction by asking the witness about only one part of the difficulty, and the defendant has a right to interrogate the witness on cross-examination so as to bring out all that he saw and all the facts and circumstances connected with the matters already stated, as well the condition of the parties as to their acts.
Cross-examination as to difficulty leading to homicide must be confined to matters already stated. To make such cross-examination proper the questions must be confined to all the facts and circumstances connected with matters already stated that have any bearing on the case or any relation to the difficulty between the parties.
Question eliciting matters without bearing on difficulty held improper. A question so broad as to elicit matters that have no bearing on the case, or any relation to the difficulty between the parties, is improper.
On objection that question does not disclose relevancy of answer, counsel should state what he intends to prove. On objection to a question that does not disclose that the answer would throw any light on the transaction, counsel should state to the court what he desires or intends to prove by the question, so that the judge can determine its relevancy.
Sustaining objection to questions not indicating relevancy of answers not error where no offer of proof. There is no error in sustaining objections to questions propounded to a witness where there is nothing in the questions themselves, nor in the evidence in the case, showing that the answers would be relevant or pertinent to the issues, and the party does not make an offer of what he proposes to elicit by such questions in order that the court may judge of its relevancy.
The court's use of the word 'slayer' in referring to defendant held not error. While it may be better for the court in its instructions to the jury to use some other term than that of 'slayer' in referring to a person on trial for homicide, its use is not reversible error.
State's attorney should be careful to avoid saying or doing anything to influence jury outside of evidence. A state attorney should be particularly careful to avoid saying or doing anything that, by reason of his personality and the esteem in which he is held in the community, might influence or affect the jury outside the evidence.
Macfarlane & Macfarlane, of Tampa, for plaintiff in error.
Rivers Bufor, Atty. Gen., J. B. Gaines, Asst. Atty. Gen., and Charles B. Parkhill, State Atty., of Tampa, for the State.
William R. Haager was convicted in Hillsborough county circuit court of murder in the second degree for the killing of Daniel W Hall.
Both sides of the case are strongly presented by counsel for plaintiff in error and the state attorney for the Thirteenth judicial circuit who briefed the case on behalf of the state.
The brief of the plaintiff in error skillfully classifies the assignments of error into (1) those founded upon the action of the court in the admission and rejection of evidence; (2) upon the attempted impeachment of the witnesses Miss Lillian Langford and Morris Tracy; (3) those based on remarks and conduct of the state attorney; (4) those based upon instructions of the court.
The first assignment discussed under the first classification is based upon the refusal of the court to allow a witness, Alice M. Lindner, to retire from the stand during her cross-examination in order to refresh her memory by examining a memorandum that she had previously made of circumstances about which she testified.
This witness was a nurse in the hospital to which the plaintiff in error was taken on the night of the homicide. She testified on cross-examination that there was a wound on his right leg, but, upon further interrogation she said that she did not remember and could not say positively that it was not on the left leg; that she had made a record of the wounds she found on Haager, and that the records were in the Gordan Keller Hospital from which she could refresh her memory.
The attorney for the defendant below then asked the court to permit the witness to go to the hospital and there refresh her memory, and he be allowed to recall her for further cross-examination after she had done so. This request was denied and exception duly taken.
At the time of making his ruling the court stated that, if counsel desired to prove the contents of a record made by a witness, he could do so by making her his witness. This testimony could not have been used for the purpose of impeaching the witness or discrediting her veracity, because, after stating that the wound was on the right leg, she expressed doubt and uncertainty about it. The only effect would have been to show that she was mistaken in her direct testimony, and on cross-examination she admitted she might have been.
In so far as it affected the truth of the contention of the defendant that the blow was on his right leg, this was established by all the witnesses who testified on this point; and it was clearly shown that she was mistaken. If the witness had been very positive about the location of the wound and there was not ample testimony to establish the absolute truthfulness of the defendant's testimony as to the location of the wound, and it became necessary in order to contradict her that the record should be produced--if there was such a record kept at the hospital--there was nothing to prevent the defendant from proving the truth of the matter by the record, either by making this witness his own and proving the record by her, or by proving it by the custodian of the records at the hospital. If the purpose was to discredit her or weaken the effect of her testimony by showing that her memory as to the events of that night was vague and uncertain, she admitted this on cross-examination, and subsequent testimony so completely established this fact that no harm could possibly have been done by failure to produce cumulative evidence on this point that the records would have furnished. If there was error in not granting the request of defendant's counsel, it was error without injury.
The twenty-fifth, twenty-sixth, and twenty-seventh assignments present the question of the conduct of the state attorney in injecting a remark into the proceedings while this witness was under cross-examination, in propounding a question to her, and certain remarks by him during the discussion of these matters before the court that counsel for defendant considered charged him with unfair dealing.
The witness testified on direct examination that the defendant, while in the hospital, on the night of the homicide, said: 'If he had had a gun eh would have finished the job.' She said she was unable t o say of her own knowledge whom he was talking about when he made that remark.
The proceedings objected to grew out of the following questions and answers on cross-examination.
At this point the state's attorney said:
The record...
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...Judge had instructed that the exhibit consisted only of the front of the card and to ignore the writings on the back. In Haager v. State, 1922, 83 Fla. 41, 90 So. 812, the Supreme Court held that the use of the word 'slayer' by the trial Court in one of its instructions to the jury in refer......
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