Harvey v. State

• Decision Date: 20 September 1937
• Citation: 176 So. 439,129 Fla. 289
• Parties: HARVEY v. STATE.
• Court: Florida Supreme Court

176 So. 439

129 Fla. 289

HARVEY v. STATE.

Florida Supreme Court, Division A.

September 20, 1937

Rehearing Denied Oct. 27, 1937.

Error to Circuit Court, Marion County; Fred L. Stringer, Judge.

John Harvey was convicted of stealing a calf with force and arms and he brings error.

Affirmed.

COUNSEL

S. T. Sistrunk and C. E. Armstrong, both of Ocala and Scofield & Scofield, of Inverness, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for the State.

OPINION

BUFORD Justice.

We review on writ of error judgment of conviction under an information charging as follows:

'That John Harvey, late of the County of Marion and State of Florida, on the 10th day of October in the year of our Lord One Thousand Nine Hundred and Thirty-six, with force and arms at and in the County and State aforesaid, did unlawfully take, steal and carry away a bull calf, a more particular description of which is to the State Attorney unknown, of the property of John Hagins; contrary to the form of the Statute in such cases made and provided and against the Peace and Dignity of the State of Florida.'

Motion to quash was denied, and the state required to furnish bill of particulars, as follows:

'Comes the State of Florida, by its Assistant State Attorney, in compliance with the order of the court heretofore entered on this date, on the motion by the defendant for a bill of particulars, and says:

'1. That the approximate weight of the calf alleged to have been stolen was 175 pounds on foot.

'2. That the approximate age of the said calf alleged to have been stolen was three months.

'3. That the color of the said calf alleged to have been stolen was light red with white spots.'

The allegations of the information with contents of the bill of particulars were sufficient. See Montgomery v. State, 100 Fla. 782, 130 So. 34; Tucker v. State, 100 Fla. 1440, 131 So. 327.

Plaintiff in error has stated 25 questions for our consideration. The first, challenging the sufficiency of the information, we have hereinabove disposed of. Many of the questions are but restatements of other questions, and may be disposed of without separate discussion.

The second question challenges the sufficiency of the evidence to sustain the verdict. The evidence was circumstantial, but it meets the rule in such cases, and was sufficient to exclude every reasonable hypothesis, except that of defendant's guilt. No good purpose can be served by delineating the testimony in this opinion. See Driggers v. State, 96 Fla. 232, 118 So. 20; Gant v. State, 114 Fla. 23, 152 So. 710.

The third question challenges the action of the court in admitting in evidence the testimony of certain witnesses as expert cattlemen and butchers. Each of the witnesses referred to showed himself to be an expert by many years of experience in the line of business and occupation, and that his experience had been such, and the knowledge so acquired was such, as to qualify him to testify as an expert in regard to the matters about which he testified. In Atlantic Coast Line R. R. Co. v. Dees, 56 Fla. 127, 48 So. 28, it was held:

'When a witness is offered either as an expert or a skilled witness, it is for the trial court to determine whether or not the witness has been shown to possess the requisite qualifications and special knowledge to warrant his so testifying, and the decision of such trial court is conclusive upon this point, unless it appears from the transcript to have been erroneous or to have been founded upon some error in law.'

Questions 4 and 5 challenge the action of the court in allowing the skin of a calf to be exhibited before the jury and admitted in evidence. The skin was positively identified as the skin of the calf described in the information and bill of particulars, and was found on defendant's premises under like facts and conditions as those which were shown to have obtained in reference to a cow hide introduced in evidence in the case of Carlton v. State, 111 Fla. 777, 149 So. 767.

The sixth question challenges the action of the court in allowing, over the objection of defendant, two assistant state's attorneys to participate in the conducting of the trial. There is no merit in this contention. See Jerry v. State, 99 Fla. 1330, 128 So. 807.

The seventh question challenges the action of the court in permitting more than one of the state's attorneys to participate in the examination of witnesses. This is a matter which is regulated by court rule, and the rule may be relaxed whenever the trial judge sees fit to follow such course. The rule itself, No. 52, contemplates that the court may permit its nonobservance.

Questions 8, 9, 11, and 12 each challenge the action of the court in allowing four certain witnesses each to testify to conversations had with the defendant in jail after he had been arrested in connection with the offense charged. Each of these witnesses testified that in the conversations referred to the defendant made statements about the matter under consideration against his interest and contrary to facts proved to be true. It was shown to the satisfaction of the trial judge that such statements were freely and voluntarily made. The statements were admissible under the rule as stated in the case of Palmer v. State, 106 Fla. 237, 143 So. 126, 145 So. 69, and authorities there cited.

The tenth question is grounded on what transpired during the trial when the witness Hall was testifying as a witness for the state, as follows:

'By Mr. Smith: Q. What did you do then, after going to that store, where did you next go? A. Over to Ben Bagley's place of business.

'Q. What did you do over there?

'By Mr. Scofield: To which the defendant objects, because anything that Ben Bagley might have said or done...