Hancock v. State
| Decision Date | 23 July 1925 |
| Citation | 105 So. 401,90 Fla. 178 |
| Parties | HANCOCK v. STATE. |
| Court | Florida Supreme Court |
En Banc.
Error to Criminal Court of Record, Dade County; Tom Norfleet Judge.
Frances Hancock was convicted of assault with intent to commit manslaughter, and she brings error.
Affirmed.
Syllabus by the Court
Parol testimony, merely establishing existence of written instrument, is admissible. Parol testimony, merely establishing the existence of a written instrument, as distinguished from its terms, contents or legal effect, is admissible.
Under proper circumstances, parol evidence of contents of written instrument may be given, if original instrument or contents or legal effect are not directly involved, but relate to collateral facts. Under proper circumstances, secondary or parol evidence of the contents of a written instrument may be given when the original instrument or its contents or legal effect are not directly involved in the issues in the case but relate merely to collateral facts.
Parol testimony, not purporting to be primary testimony of contents of written instrument forming part of conversation between witness and another person, held admissible. Parol testimony which does not purport to be primary testimony of the contents of a written instrument, but which forms a part of a conversation between the witness and another person, in the presence and hearing of the defendant, in which reference was made to a failure to fulfill the provisions of the instrument, neither the terms, contents, nor legal effect of such written instrument, being directly involved in the issues, but merely collateral thereto, is admissible.
Testimony identifying pistol offered in evidence, held sufficient to admit it in evidence. In a prosecution for assault with intent to commit murder, the assault being committed by shooting the victum with a pistol testimony that a pistol offered in evidence by the state is the same pistol taken from the hand of the defendant by the witness immediately after the assault, and while the barrel of the pistol was still smoking, and that it is then in the same condition as when the assault was committed, is sufficient proof of identity and connection with the crime to admit the pistol in evidence.
Discretion of trial court, as to order of introduction of evidence, will not be interfered with on appeal except for clear abuse. The regulation of the order of the introduction of trial evidence rests within the sound discretion of the trial court and the exercise of such discretion will not be interfered with by the appellate court unless clearly abused.
Remark by prosecuting attorney in argument, that in his judgment evidence warranted filing information, held not error. In his closing argument to the jury, the prosecuting attorney stated that when he went over the testimony submitted to him as the prosecuting attorney of the county, in his judgment he was warranted in filing the information used in this case. Held, that the remark was not beyond the legitimate scope of the arguments of counsel to the jury, since it stated no more than was already before the jury by the record.
Under indictment for assault with intent to commit murder in first degree, accused may be convicted of assault with intent to commit manslaughter. Under an indictment for an assault to commit murder in the first degree, the defendant may be convicted of an assault with intent to commit manslaughter.
In prosecution on information for assault with intent to commit murder in first degree, omitting to charge on offense of murder in third degree held not error. Where a defendant is tried upon an information charging assault with intent to commit murder in the first degree, and is convicted of assault with intent to commit manslaughter, there being no evidence that, if the assault with which the defendant was charged had resulted in the death of the victim, the offense would have been murder in the third degree, it was not error for the trial court to omit to charge upon the offense of murder in the third degree.
Deciding conflicts in testimony is in province of jury; if conviction is supported by evidence, in absence of showing of improper influence on jury, it will not be disturbed on appeal. It is in the province of the jury to decide conflicts in the testimony, and when there is ample evidence from which the jury might have found or inferred all the essential elements of the crime of which they found the defendant guilty, and it does not appear that the verdict is so manifestly against the weight of the evidence as to convince the appellate court that the verdict is either wrong or unjust, or that the jury was influenced by considerations other than the evidence, this court will not interfere and set aside the verdict of the jury.
G. A. Worley & Son, of Miami, for plaintiff in error.
Rivers Buford, Atty Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.
Upon an information charging assault with intent to commit murder in the first degree, the plaintiff in error (hereinafter designated as the defendant) was tried and convicted of the offense of assault with intent to commit manslaughter. To that judgment writ of error was taken.
The evidence discloses that George H. Hancock and J. F. Halsema, the former a son of the defendant, were purchasing from Dr. Wildman, the victim of the assault, a drug store located in Miami, Fla. The purchasers had been given possession of the store and were operating and managing the same, the defendant participating therein. A large part of the purchase price had been paid, the defendant contributing some of the money, but a substantial portion of the purchase price remained unpaid at the time of the assault by the defendant upon Dr. Wildman. On March 27, 1922, Dr. Wildman, claiming that the purchasers had violated the terms of sale, entered the drug store and advised the defendant and one of her sons that he had come to take possession thereof. Dr. Wildman immediately commenced waiting on customers and otherwise conducting the business of the store to the exclusion of the purchasers. The defendant, apparently reluctant to yield possession, remained in the store until it was closed for the night. The next morning defendant returned to the store and there ensued a more or less spirited and bitter discussion between the defendant and Dr. Wildman, resulting in an encounter between them about noontime, the result of which was the shooting of Dr. Wildman by the defendant.
At the trial, when Dr. Wildman was testifying concerning the incidents leading up to and immediately preceding the assault, he was permitted, over the objection of the defendant, to testify as follows with reference ot the sale of the drug store:
In relating a conversation between the witness and George H. Hancock which occurred in the presence of the defendant, when Dr. Wildman entered the drug store to take possession, Dr. Wildman, over the objection of the defendant, further testified:
The action of the trial court, overruling the objections of defendant to this testimony, constitutes the first assignment of error, the objection being that the written instruments referred to would be the best evidence of their contents, and that the admission of the testimony violates the best evidence rule.
The testimony first quoted merely establishes the existence of a written instrument as distinguished from its terms, contents, or legal effect. It is clearly admissible. Seymour v. State, 66 Fla. 133, 63 So. 7; Wilson v. Jernigan, 57 Fla. 277, 295, 49 So. 44; Cross v. Aby, 55 Fla. 311, 45 So. 820; 22 C.J. 987.
Where the terms or contents of a written instrument are directly involved in the issues, the instrument itself is undoubtedly the best evidence of its contents. In instances where the written instrument, or its contents, is merely collateral parol testimony, referring to its contents, is not necessarily incompetent. Under proper circumstances, secondary or parol evidence of the contents of a written instrument may be given when the original instrument or its contents or legal effect are not directly involved in the issues in the case, but relate merely to collateral facts. Camp v. State, 58 Fla. 12, 50 So. 537; Griffin v. State, 129 Ala. 92, 29 So. 783; Williams v. State, 149 Ala. 4, 43 So. 720; State v. McKinnon, 99 Me. 166, 58 A. 1028; 25 Am. & Eng. Ency. Law. 173; 1 Greenleaf on Evidence, § 89. Here the issue was whether or not the defendant had committed an unlawful assault upon Dr. Wildman. The fact that certain contractual relations existed between Dr. Wildman and defendant's son was not the foundation of the charge contained in the information, nor was the existence of the contract, or its contents, or legal effect, involved in the issues. These matters were merely collateral, tending to show circumstances out of which arose the difficulty which led to...
To continue reading
Request your trial
-
Grant v. State, 31760
...So.2d 254 (1924).16 Barnes v. State, 58 So.2d 157 (Fla.1952).17 See Powell v. State, 93 Fla. 756, 112 So. 608 (1927); Hancock v. State, 90 Fla. 178, 105 So. 401 (1925); Washington v. State, 86 Fla. 533, 98 So. 605 (1923); Landrum v. State, 79 Fla. 189, 84 So. 535 (1920); Wells v. State, 75 ......
-
Fouts v. State
...is clearly wrong, or that the jury were not governed by the evidence in making their finding. Driggers v. State, supra; Hancock v. State, 90 Fla. 178, 105 So. 401; May v. State, 89 Fla. 78, 103 So. 115; v. State, 88 Fla. 244, 102 So. 246; Goolsby v. State, 86 Fla. 307, 98 So. 72, and numero......
-
Bailey v. State, 38143
...second degree. Therefore, the conviction of assault with intent to commit murder in the third degree was reversed. In Hancock v. State, 90 Fla. 178, 105 So. 401 (1925), also relied upon by the State, Hancock was convicted of the offense of assault with intent to commit manslaughter. It was ......
-
Payne v. Bryan
... ... carrier, and does not assent thereto, and is not asked by the ... carrier's agent to state the value of the shipment, and ... does not state such value, and it is not stated in the bill ... of lading, the rule is different. A. C. L. R ... ...