Handley v. State

• Decision Date: 22 July 1936
• Citation: 125 Fla. 632,170 So. 748
• Parties: HANDLEY v. STATE.
• Court: Florida Supreme Court

170 So. 748

125 Fla. 632

HANDLEY v. STATE.

Florida Supreme Court, Division B.

July 22, 1936

On Rehearing November 24, 1936.

Error to Circuit Court, Madison County; R. H. Rowe, Judge.

Ernest Handley was convicted of manslaughter, and he brings error.

Reversed and remanded.

WHITFIELD C.J., and ELLIS, P.J., dissenting.

On Rehearing.

COUNSEL

Davis & Davis, of Madison, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

The writ of error is to review a judgment of conviction of manslaughter under an indictment charging murder in the first degree.

The plaintiff in error in the brief filed in this case presents ten questions for our determination. The first question is:

'Where it appears in evidence that the deceased was shot around one o'clock in the morning and the sheriff, upon being notified between 2:30 and 3:00 o'clock, went to the scene of the shooting, about nineteen miles away, as soon as he could get dressed, and upon arriving there, was told by the defendant that the deceased tried to shoot him, the defendant, and he, the defendant, beat him to it, or words to that effect, and almost immediately thereafter, in the absence of testimony showing that deceased was in a dying condition or that death was impending, and he, in point of fact, did not die for about two weeks, the deceased made statements to the sheriff which were not shown to have been heard by the defendant, but it is alleged the defendant was near enough to have heard, and such statements were of a prejudicial nature, and calculated to influence the minds of the jury to the injury of the defendant, should such statements have been admitted in evidence over objection of the defendant?'

If there was any error in admitting the testimony referred to in this question it was cured by the verdict, because the testimony which is challenged by the question tended to prove felonious intent, if it tended to prove anything at all. Aside from this, the record shows that the defendant was close enough to have heard the statements made by the deceased at the time they were made, and which are referred to in this question.

We think the record shows the statements were made in the presence of the defendant, and, therefore, no error is made to appear.

The second question is:

'Where the witness testifies that he heard a conversation between the defendant and a third party some little time after the shooting and the question is asked, 'What was that conversation?' the defendant reserving the right to move to strike the answer, and he answered, 'Handley asked him was he dead yet and he said, 'No but he is dying and will soon be dead.' And Handley said 'Let me see how many times I shot' and he reached in his belt, and pulled out his pistol and looked at it and said, 'I shot five times.' Then Handley said, 'They ought to have known better than to mess with me, I don't miss them.' And he held up his fingers and said, 'that is two to my credit.' 'If I die tonight I can say that I got two of them.'

'Yes sir, he said, 'If I die tonight, that is two to my credit,' should the court have stricken such answer upon motion of defendants?'

All that the evidence challenged by this question tended to prove was that defendant shot the deceased and shot with the intent to strike the deceased. It might be said that this was cumulative evidence, but it was certainly admissible as evidence tending to show that the defendant shot the deceased.

The third question presented is:

'Where it appears in evidence that the sister of Sledge who was the wife of his deputy, Arndt, arrived at the scene of the tragedy three or four hours after the shooting and had a conversation with Sledge, not in the presence of the defendant, should she have been allowed to testify over the objections of the defendant that Sledge told her that he was going to die, that he would never live to get to the hospital and that 'He had not done anything to Ernest Handley to cause him to shoot him down,' or words to that effect?'

There was an objection to the question as follows: 'What was the conversation between you and him as to whether or not he would die?' The Court overruled that objection. When the witness answered the question she said: 'He said, 'I am going to die,' and I said, 'How do you know?' and he said, 'I am paralyzed all over, I cannot live. I am going to die.' And I said 'No, you are not going to die, we are going to get you to the hospital' and he said 'I will never live to get there.' At that time he told me that he had not done anything to Ernest Handley to cause him to shoot him down, or words to that effect.'

There was no motion to strike the answer or that part of the answer which was not responsive to the question. Therefore, the plaintiff in error is not in position to take advantage of error if there was any in the failure of the court to strike the unsolicited part of the answer, to wit, 'At that time he told me that he had not done anything to Ernest Handley to cause him to shoot him down, or words to that effect,' which was the only part of the answer not properly admitted in evidence.

The fourth question is as follows:

'Where it appeared that the wife of Sledge saw him at the hospital about 5:00 o'clock in the afternoon after the shooting and he had a conversation with her and demonstrated the manner in which the shots were fired, should she have been permitted, over the objections of defendant, to demonstrate to the jury the manner in which those shots were fired?'

We think that the admission of this testimony was error, but, when taken in connection with the entire record, we do not think that its admission could have worked any injury to the defendant. The testimony admitted over objection was given by Mrs. Sledge, the wife of the deceased. She testified that her husband, after reaching the hospital and at a time when he said that he was going to die demonstrated to her the manner in which the shots were fired which took effect in his body. The question was, 'Did Mr. Sledge demonstrate to you the manner in which those shots were fired?' Objection was made upon the ground that the testimony elicited was hearsay; that no proper predicate had been laid as a foundation for the admission of such statement and that it is but a narrative of the past. The objections were rather vague and indefinite, but the question elicited hearsay testimony. It was not shown to have been admissible as a dying declaration, but the answer was such that its admission does not appear to us to have probably been harmful. The answer was: 'He said that they were shot just like that, and he snapped his fingers 5 times as fast as he could.'

So, we hold the error thus committed to have been harmless. Section 2812, R.G.S., section 4499, C.G.L; O'Steen v. State, 92 Fla. 1062, 111 So. 725; Henderson v. State, 94 Fla. 318, 113 So. 689.

The fifth question is as follows:

'Should the court, upon request of defendant, have charged the jury that the presumption of innocence 'attends and abides with him (the defendant) at every step and in every stage in the case; that the fact or not that he is indicted for this offense is not indication of his guilt, for to charge an offense is one thing and to prove it is another' and that 'if the evidence or lack of evidence to your minds engenders a reasonable doubt as to the proof of any one or more of the material allegations of the indictment, then you cannot convict the defendant, but should return a verdict of not guilty?”

The charge was properly refused because it did not correctly state the law. That part of the charge reading, 'If the evidence or lack of evidence to your minds engenders a reasonable doubt as to the proof of any one or more of the material allegations of the indictment, then you cannot convict the defendant but should return a verdict of not guilty,' is fatally defective because, while the evidence might fail to prove elements of murder in the first degree as alleged in the indictment, it might amply prove some other degree of unlawful homicide, and in such event the defendant would not be entitled to a verdict of not guilty.

The 6th, 7th, and 8th questions are predicated on the assumption that the charge referred to in the 5th question was proper to be given and that the charges given by the court were inadequate and insufficient when considered with the fact that the requested charge was refused. We have carefully considered the charge of the court as given and find that it was entirely sufficient to give the defendant the benefit of all his legal rights in the premises.

The 9th question is as follows:

'Where the state attorney, in the trial of the case, while in the presence of the jury without cause, makes an issue between the defendant and himself, and pursues the matter in his argument to the jury in a manner to divert the minds of the jury from the issues in the case, should the court grant defendant motion for a new trial where the motion contains such a ground and is supported by affidavits?'

It appears from the transcript of the record that at the close of the testimony of the state the defendant moved the court to call as a court's witness one C.J. English. The record shows that a motion was made and thereupon the court called English as a court witness. The record does not show any statement at that time made by the state's attorney nor any objection made to anything said by the state's attorney nor any ruling of the court in regard thereto or any exception noted.

In motion for new trial the 17th ground is in the following language:

'Because of a prejudicial statement of the States Attorney, the Hon J. R. Kelley, in...