Henderson v. State
| Decision Date | 01 August 1927 |
| Citation | 94 Fla. 318,113 So. 689 |
| Parties | HENDERSON et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.
William B. Henderson and Thomas Costello were convicted of first degree murder, and they bring error.
Affirmed.
Syllabus by the Court
Admissibility of testimony does not depend on its sufficiency to prove issue; in prosecution for murder, testimony identifying defendants held admissible in view of other testimony although not conclusive. The admissibility of testimony does not depend upon its sufficiency, standing alone, to prove the issue.
Testimony as to identity is in nature of opinion evidence; if ordinary witness bases testimony on own knowledge, his opinion belief, or judgment as to identity of person or object is admissible; ordinary witness as to identity of person or object may be cross-examined as to basis for his opinion or belief. Testimony as to identity is in the nature of opinion evidence. Provided a witness bases his testimony on his own knowledge, and not on information furnished by another, the opinion, belief, or judgment of an ordinary witness as to the identity of a person or an object is admissible in evidence. The witness may, of course, be examined as to the basis for his opinion or belief, so that the jury can judge as to the probative value thereof.
Showing relations between witness and party for whom he testifies, or whether he is under personal obligation to party or close relative, is permissible; in prosecution for murder permitting defendants' witness to be asked whether mother of one of defendants put up bond for witness was proper. It is permissible to show the relations existing between a witness and the party for whom he testifies, or whether he is under personal obligation to such party, or to one as closely identified with such party, as the mother, father, or wife of such party.
Trial judge's control over counsels' arguments will not be disturbed except on showing of clear abuse of discretion. The control of the trial judge over the arguments of counsel will not be disturbed by an appellate court unless a clear abuse of judicial discretion is shown.
Recitals in motion for new trial are not evidence or proof of facts stated or asserted therein; mere recitals in motion for new trial, unsupported by record, that when defendants' counsel started to protest against state's attorney's misquoting testimony judge ordered him to keep quiet, will not be considered. Recitals in a motion for a new trial are not evidence or proof of the facts stated or asserted in such motion.
Trial judge, regardless of request, should check improper remarks of counsel to jury and remove effect by proper instructions generally, verdict will not be set aside because of counsel's remarks to jury and judge's failure to remove effect, in absence of objection, ruling, and exception. While it is the duty of the trial judge, whether requested or not, to check improper remarks of counsel to the jury, and to seek by proper instructions to the jury to remove any prejudicial effect they may be calculated to have against the opposite party, the general rule is that a verdict will not be set aside by an appellate court because of such remarks or because of any omission of the judge to perform his duty in the matter, unless objection was made at the time of their utterance and a ruling of the court secured thereon and an exception to such ruling duly taken.
If neither rebuke nor retraction of counsel's improper remarks to jury could destroy their influence, new trial may be awarded regardless of lack of objection or exception. The ruling stated in the foregoing headnote is subject to the exception that, if the improper remarks are so obviously prejudicial and of such a character 'that neither rebuke nor retraction may entirely destroy their sinister influence,' a new trial may be awarded regardless of the want of objection or exception.
Improper argument, provoked by improper argument for plaintiff in error, does not ordinarily give ground for reversal; general rule is that attorney has full authority to act in court proceedings for client, who is bound thereby. Improper argument of opposing counsel, when provoked by and made in reply to improper argument of counsel for plaintiff in error, does not ordinarily afford ground for reversal. As to proceedings in court, the general rule is that an attorney has full authority to act for his client, and the latter is legally responsible therefor.
Trial court should rigorously keep out of case all personal altercations between counsel. The trial court should rigorously use its power to keep out of the case all personal altercations between counsel.
On improper statement by counsel before practicable to prevent it, court should promptly rebuke or punish him and instruct jury to disregard it and prohibit further references thereto by either side. When an improper statement is made by counsel in argument before it is practicable for the court to prevent its utterance, the court should visit upon such counsel prompt an fitting rebuke or punishment and give the jury appropriate instructions not to regard it and attempt so far as possible to counteract or prevent its unfavorable tendency or influence upon the jury, prohibiting any further references to the matter by either side.
Verdicts and judgments should not be set aside on appeal unless errors as shown by entire record were prejudicial or injurious (Rev. Gen. St. 1920, § 2812). The language of section 2812, Rev. Gen. Stats. 1920, as well as the decisions of this court for many years before the statute was enacted, import that verdicts and judgments of trial courts should not be overturned and set aside by this court for mere errors committed in the court below unless it is made to appear to this court, after inspection of the entire record, that the errors complained of were prejudicial or injurious in their nature and tendency and resulted in a miscarriage of justice.
On contention that state had not subpoened certain witness, exhibiting subpoena to jury in prosecuting attorney's argument was not error, it being part of record. Where it had been charged in argument that counsel for the state had not subpoenaed a certain witness, it was not error for the state's attorney to exhibit the subpoena to the jury in the course of his argument, as such subpoena was a writ issued by the court and returned to it in the particular case and was a part of the court's record in such case,
Evidence held to sustain conviction of first degree murder; in prosecution for murder, personal altercation between counsel, precipitated by charges made by defendants' counsel, held not to constitute reversible misconduct (Rev. Gen. St. 1920, § 2812). There being ample evidence to sustain the verdict, and it not appearing that the jury were influenced by anything outside the evidence and the law of the case, held, that no sufficient showing has been made, on ground of improper argument, to justify the appellate court in reversing the judgment of conviction.
E. L. Bryan, of Tampa, for plaintiffs in error.
J. B. Johnson, Atty. Gen., and Charles B. Parkhill, State Atty., of Tampa, for the State. Plaintiffs in error were convicted on July 29, 1926, in the circuit court for Hillsborough county, of murder in the first degree and sentenced to death by electrocution. The case is before us for review upon writ of error sued out in November, 1926, the transcript being filed in this court January 27, 1927. Pursuant to request, oral argument was granted and the case was argued orally before this court on April 26, 1927.
There are 38 assignments of error, a considerable portion of which have been abandoned.
At about 9 o'clock on the night of May 11, 1926, two men entered La Florida restaurant, fronting on Fourteenth street at the corner of Eighth avenue in the city of Tampa, rifled the cash register, and shot and killed Antonio Regueria, one of the proprietors. Besides the deceased there were in the restaurant at the time S. Garcia, a partner of the deceased; Jose Regueria, son of the deceased, and acting as manager of the restaurant; Lopez and Flores, waiters Martinez, the cook; and two guests. Another guest, F. R. Wheyland, a local newspaper man, had just left the restaurant and gone to his automobile across Fourteenth street, which street was brilliantly lighted. After the shooting he saw one of the men rushing out of the Fourteenth street entrance across the sidewalk and into the street, where he whirled around and then fled down the street.
When the two men entered the restaurant, Joes Regueria and the waiter Flores were eating their supper at one of the tables Lopez, the other waiter, was standing near by; the cook was in the rear putting on his hat and coat, preparatory to going home; Mr. Garcia was back in the office just a short distance in the rear of the sandwich counter, called the 'canteen'; the two guests, Moller and a friend, were seated at one of the tables; Mr. Antonio Regueria was standing behind the counter of the canteen. The men entered quickly, flashed their pistols, and the tallor of the two, a rather tall man with a bump or scar on the side of his face, ordered all present not to move. He then advanced to the cash register and pulled it around with one hand, while the other man, not so tall but more stockily built, went back to the far end of the canteen and covered Regueria with his revolver. About that time Martinez, the cook, preparing to go home, came by the canteen, and the stockily built man turned and shoved him out of the side door on Eighth avenue. At this, seizing the opportunity at once, Regueria rushed back into the...
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