Henderson v. State

Decision Date23 January 1945
Citation20 So.2d 649,155 Fla. 487
PartiesHENDERSON v. STATE.
CourtFlorida Supreme Court

Appeal from Criminal Court of Record, Polk County; R. H Amidon, judge.

Martin & Martin, of Plant City, for appellant.

J. Tom Watson, Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for appellee.

BUFORD, Justice.

The appellant, on the 5th day of January, 1944, was informed against in the Criminal Court of Record of Polk County by the County Solicitor in and for such County by information containing two counts. The first count charged assault with intent to rape. The second count charged assault with intent to commit a felony, to-wit, to have unlawful carnal intercourse with one Marie Grant who was then and there an unmarried female person of previous chaste character under the age of eighteen years. The first trial was had on January 25, 1944, with the result that a verdict was directed in favor of the defendant on the first count; a mistrial was had on the second count.

The case was brought on for trial again in the court aforesaid on the 22nd day of June, 1944, on the said second count of said information. That trial resulted in a verdict of guilty as charged in such second count.

The record shows that during the progress of the first trial the witnesses on behalf of the State had testified that the alleged offense was committed between 12:00 o'clock Noon and One o'clock P.M. and the defendant interposed proof of alibi under his plea of not guilty.

On the second trial the alleged victim and other States witnesses placed the time of the alleged offense at between 11:00 o'clock A.M. and 12:00 o'clock Noon. Among those who testified on the first trial by whose testimony it was sought to show that the offense occurred between 12:00 o'clock Noon and One o'clock P.M. was one Mary Grant, the stepmother of the alleged victim, who testified as to the time when Marie left home and at what time she returned.

On the second trial Mary Grant was called as a witness for the State but was not interrogated by the County Solicitor as to the time when Marie Grant left home and when she returned.

On cross-examination defendant's counsel sought to elicit this information from the witness Mary Grant. Objection was made that the question was not made in cross. The Court held and so directed counsel that he could make Mary Grant a defendant's witness at the close of the State's case and interrogate her in that regard. This course was pursued but when Mary Grant was put on the stand by the defendant she testified that Marie left her home at about twenty minutes after eleven (11:20) o'clock A.M.

After several questions and answers in regard to the fixing of this time the following occurred:

Question by Mr Martin, counsel for defendant: 'Now, don't you know that the time that this girl left your house was between 12 and 1 o'clock and not 20 minutes after 11? A. Well, yes sir, I did say that.

'Mr. Wilson: To which the State objects on the ground its not responsive to the question and we object to Mr. Martin trying to impeach his own witness.

'By the court Not unless he lays the predicate for it.

'Mr. Martin: I can plead surprise.

'By the Court: Not in case you introduce the testimony----

'Mr. Wilson: The State objects to the question and moves that the answer be stricken.

'By the Court: Motion granted. (To which ruling of the Court the defendant did, then and there, except.)

'Q. What time was it when she (Mrs. Grant) left your house that day?

'Mr. Wilson: The State objects on the ground the witness has already answered the question.

'By the Court: Objection sustained. (To which ruling of the Court the defendant did, then and there, except.) A. 20 minutes after 11.

'Q. Did you ever testify any other way than you are testifying now?

'Mr. Wilson: The State objects on the ground its an effort to impeach his own witness and is entirely improper.

'By the Court: Objection sustained. (To which ruling of the Court the defendant did, then and there, except.)'

So it is that the defendant was denied the right to lay a predicate for the impeachment of this witness. It is true that defendant's counsel did not ask the witness a proper question to lay the ground for impeachment but the Court held that he could not, when he had been surprised by the adverse testimony of the witness, lay a predicate to impeach her because he had introduced her as his witness. Therefore, we must assume that it would have...

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19 cases
  • Williams v. State, 80-277
    • United States
    • Court of Appeal of Florida (US)
    • June 30, 1981
    ...See generally, Annot., Instructions Defining Offense, 169 A.L.R. 315 (1947), and compare 317-322 with 346-348.Henderson v. State, 155 Fla. 487, 20 So.2d 649 (1945), is even more dissimilar. There, the trial court actually instructed the jury that certain elements of the crime had in fact be......
  • Jones v. State, 81-2175
    • United States
    • Court of Appeal of Florida (US)
    • February 26, 1985
    ...the determination of any essential element of the offense charged violates constitutional due process requirements. Henderson v. State, 155 Fla. 487, 20 So.2d 649 (1945) (every element of a criminal offense must be proved sufficiently to satisfy the jury, not the court, of its existence); W......
  • State v. Ellis
    • United States
    • Court of Appeal of Florida (US)
    • May 22, 1997
    ...So.2d 533, 535, 536-537 (Fla. 3d DCA 1972). The supreme court resolved the conflict as follows: We find conflict with Henderson [v. State, 155 Fla. 487, 20 So.2d 649 (1945)] wherein we used language directed to an instruction which we stated "invaded the province of the jury to the extent o......
  • Butterworth v. Caggiano
    • United States
    • United States State Supreme Court of Florida
    • July 9, 1992
    ...... Three of the bookmaking incidents occurred at Caggiano's personal residence. The State later sought forfeiture of the residence in separate civil proceedings under the Florida RICO Act on the grounds that the property was "used" in the ... Neither the legislature nor this Court has the power to create one. 5 See, e.g., Henderson v. State, . Page 61. 155 Fla. 487, 491, 20 So.2d 649, 651 (1945); Crawford v. Gilchrist, 64 Fla. 41, 54, 59 So. 963, 968 (1912). ......
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