Hedges v. State

• Decision Date: 22 May 1964
• Docket Number: No. 3110,3110
• Citation: 165 So.2d 213
• Parties: Vesta HEDGES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 213

165 So.2d 213

Vesta HEDGES, Appellant, v. STATE of Florida, Appellee.

No. 3110.

District Court of Appeal of Florida, Second District.

May 22, 1964.

Rehearing Denied June 25, 1964.

Mark R. Hawes, St. Petersburg, and Richard B. Keating of Smith & Keating, Orlando, for appellant.

James W. Kynes, Atty. Gen., and James C. Mahorner, Asst. Atty. Gen., Tallahassee, for appellee.

FUSSELL, CARROLL W., Associate Judge.

Appellant, a divorced legal secretary, 44 years of age, was indicted for murder in the first degree and charged with fatally shooting the deceased, a married man, 36 years of age, who was a garage mechanic. The case required 14 days for trial and the transcript of testimony consists of 10 volumes. Appellant's brief presents six questions upon which she seeks reversal of her conviction of manslaughter.

Appellant and deceased were each married at the time they first met, some seven years prior to the death of the deceased, during most of which time they maintained an illicit relationship. Numerous disagreements and separations occurred between the appellant and deceased over this seven-year period. Appellant's husband was a salesman and his employment required him to be away a good portion of the time, and upon learning of her infidelity divorce proceedings were instituted which resulted in a divorce and in which, by agreement, their home is Orlando, where the homicide occurred, was awarded to appellant and the custody of their two sons was awarded to her husband, who had gone back to Illinois where they previously resided. The first child of the deceased was a few months old at the time he first met the appellant. He continued to live with his wife during this entire time, except for one thirty-day period, and two other children were born during this seven-year period. The wife of the deceased testified that he had decided to give up and leave the appellant and that he informed her that he was staying with the appellant as much as he had because appellant had compromising pictures which she threatened to exhibit to his elderly father and mother and to his children if he left her. She further testified that shortly prior to his death the deceased decided definitely to leave appellant, and on July 30, 1961, appellant 'phoned her and requested that they meet to discuss the matter; that at this meeting appellant told her that she loved the deceased; that she had given seven years of her life to him; that she had given up her husband and her two sons on account of him, and that she would kill him if he attempted to leave her; that she would trick him into coming to her place and would then shoot him and claim self-defense; that the attorneys for whom she worked were excellent lawyers and would free her from any criminal charge.

The evidence shows that the deceased went to the home of the appellant on the night of August 8, and that about 1:30 a. m. on August 9 he was killed by a shot from a 22-caliber revolver owned by the appellant. Appellant was shot on this same occasion by this same revolver, the bullet entering her breast, piercing her body and coming out of her back on to the floor where it was found. There were no witnesses other than the appellant and the deceased. The deceased was found lying on his back with his right hand resting on his body and the pistol held lightly under his hand.

It is the testimony of the appellant that deceased became angry with her when she would not promise that she would not have dates with other men while he continued to live with his wife, and after she thought he had left her home he came back into the room where she was with a pistol, which remained in his hands at all times, and told her he was going to kill her. Appellant testifies that she grabbed at the pistol and a struggle ensued, during which she was shot through the body, and while wrestling with the deceased the pistol was again discharged into his body, causing him to die almost immediately.

An expert witness testified on behalf of the State that he examined the deceased's shirt, and from tests made, and his experience and special study in this field, the muzzle of the pistol could not have been closer than two and a half feet from deceased's shirt at the time of the explosion.

The evidence indicates that the pistol was a single-action 22-caliber revolver and that it was necessary to cock the pistol by pulling back the hammer each time before firing it. It was the contention of the State that the deceased could not have shot himself by holding the pistol with its muzzle thirty inches from his body at the time of the shooting.

One of the questions interposed by appellant is the sufficiency of the evidence to sustain appellant's conviction of manslaughter. It is our opinion that there is sufficient evidence in this case, if believed by the jury, to sustain the guilty verdict for manslaughter found by the jury.

Appellant objects and contends that the decisions of the State Supreme Court, citing Mayo v. State, Fla., 71 So.2d 889; Holton v. State, 87 Fla. 65, 99 So. 244; Kelly v. State, 99 Fla. 387, 126 So. 366; Metrie v. State, 98 Fla. 1228, 125 So. 352, and Jenkins v. State, 120 Fla. 26, 161 So. 840, hold that where there are no eye witnesses other than the defendant and the deceased, so that the proof of guilt must be circumstantial, and where the defendant's testimony showing innocence is consistent with the circumstantial evidence, that then the defendant's testimony must be accepted and the defendant acquitted.

In this case, however, the defendant's testimony that the deceased shot himself is not consistent with the physical facts, if believed by the jury, by reason of the expert testimony that the muzzle of the pistol was thirty inches or more from the body of the deceased at the time the pistol was fired. The jury is not required to believe the testimony of the defendant if they find other facts to exist which would make the defendant's version impossible.

Another question presented is whether the remarks of the State's Attorney in his argument to the jury constituted an improper and prejudicial reference to the failure of the defendant to testify at a prior preliminary hearing or habeas corpus proceeding, contrary to the provisions of Florida Statute § 918.09, F.S.A. The three statements made by the State's Attorney, and about which the defendant now complains, are as follows:

'Let me remind you of one little threat that was contained in there which I think is significant. Before Mrs. Hedges ever got to the stand, and told us what happened in that room, which is the first time we have heard it, Mrs. Keeling testified that in order to carry out her threat she was going to get Bob over there on some pretext or other and then shoot him and claim self defense. When was the next time we heard that? Mrs. Keeling didn't hear what Mrs. Hedges was going to say. Lo and behold, Mrs. Hedges, I think, is going to claim self defense. * * *' (T.T. Vol. IX-1734) (Emphasis supplied by defendant).

'* * * the State was very limited as to the investigation it could make because of the silence of the accused.' (T.T. Vol. X-1824) (Emphasis supplied by defendant).

'* * * What did she do when she went back into the bedroom and started dialing the phone? Who did she call? Who did she tell her story to? She didn't tell it to the Sheriff's office; she didn't tell it to the ambulance driver; she didn't call the police; she didn't call her doctor--* * *' (T.T. Vol. IX-1731). (Emphasis supplied by defendant.) (Above from page 4 of Brief of Appellant)

It is the contention of defendant that the above statements referred to the failure of the defendant to testify at a habeas corpus proceeding for bail held before Judge Barker on November 13, 1961. The defendant cites six places in the transcript wherein it is said that the habeas corpus was referred to. The reference referred to is substantially the same in all six places and consists of a question asked by the attorney for the defendant of a witness, as follows:

'Do you remember testifying before Judge Barker on November 13, 1961?'

There is no reference to the type of the hearing or the purpose of the hearing, and, in fact, it might have been a hearing on a civil case or on some other criminal case. The defendant testified at her trial and there is no indication she was in anyway prejudiced by reason of the statements of the State's Attorney.

Defendant relies principally upon the case of Simmons v. State, 139 Fla. 645, 190 So. 756. In this case the State's Attorney asked the defendant at the time of trial:

'Q. Did you testify at the preliminary hearing?

'A. No sir.

'Q. Did you testify at the habeas corpus?

'A. No sir.'

Later in his argument to the jury the State's Attorney said 'up until that time the defendant had never opened his mouth.' The court held this to be a violation of the Florida Statute, since the State's Attorney had called attention of the jury to the failure of the defendant to testify at the preliminary hearing or at the habeas corpus hearing. The record in this case is wholly silent as to whether there was a habeas corpus hearing held in this case or as to whether any preliminary hearing was held in this case or not.

Appellant contends that the lower court committed error by its refusal to give her requested charge No. 17 as amended, which reads as follows:

'A person's dwelling house is a castle of defense for himself or herself and family and one assaulted in his or her own home is not obliged to retreat, but may stand his or her ground and use such force as may appear to him or her as a cautious, prudent man or woman to be necessary to save his or her life or to save himself or herself from great bodily harm, if such a person be free from fault in bringing about such an assault.' (Original record p. 6-24; T.T. Vol. IX-1711-1713.)

The State has offered no evidence, nor has the State's Attorney made any contention that the appellant...