Hernandez v. State

• Decision Date: 20 April 1945
• Citation: 156 Fla. 356,22 So.2d 781
• Parties: Mario HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

22 So.2d 781

156 Fla. 356

Mario HERNANDEZ, Appellant, v. STATE of Florida, Appellee.

Florida Supreme Court

April 20, 1945

On Hearing July 13 1945.

Further Rehearing Denied July 30, 1945.

Appeal from Circuit Court, Hillsborough County; L. L. Parks judge.

William C. Pierce of Tampa, and Woodrow M. Melvin, of Milton, for appellant.

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

PER CURIAM.

Affirmed.

TERRELL, BUFORD, THOMAS, and SEBRING, JJ., concur.

CHAPMAN, C. J., and BROWN and ADAMS, JJ., dissent.

On Rehearing

BROWN, Justice.

Appellant was indicted for the first degree murder of Frank Zatarain. He was convicted by the jury of murder in the second degree, and from the judgment and sentence imposed by the Court this appeal was taken.

The record shows that appellant's daughter, Alice Zatarain, a young woman twenty-two years of age, was the wife of Frank Zatarain. They had two children, a son three and a half years old and a baby daughter about two years old. While all the parties lived in Tampa, Mario Hernandez lived some distance away from the apartment occupied by his daughter and her husband. Alice Zatarain testified that for a considerable period of time Frank Zatarain had been very abusive and cruel to her and on many occasions had beaten her and threatened her life, and on one recent occasion had threatened to kill their little daughter. Mario Hernandez testified that he had done all that he could do to help them and to maintain peace in the family and had frequently advanced money to Frank but that he knew that his daughter was having a very hard time of it. Alice testified that shortly before this tragedy, Frank had been drinking and gambling and had been unusually violent towards her every night for three nights preceding a trip he made to Key West to find work, which trip she had suggested and had asked a friend to lend him the money with which to make the trip; that Frank's violent treatment of her at night made it very difficult for her to do her work and hold the job she had been compelled to take. He returned in two or three days and when she went home from her work in the late afternoon of Thursday, January 14th, she found Frank there. He had evidently been drinking and was very abusive. She told him that she still loved him but that she could never live with him any more, and that brought on more trouble. He left the apartment stating that he was going to fix it so that she could put him in jail; that he was going after some whiskey. She left the apartment carrying her little boy with her and went to Frank's mother's house to get their little girl. Then she started to a nearby store, whereupon she met Frank and told him that she was leaving. She went to the store and called a taxicab. While she was doing this Frank came up and took the little girl away from her and showed his wife a knife that he was holding in his hand. She saw that her husband was drinking and became frightened and told him that she would get the police or her father to get the baby. Frank replied that if she did so he would cut her father's throat and the baby's throat. Alice then took her little boy and went immediately to her father's home. It was then about 9:30. She told him what had taken place and begged him to get her baby for her. At her father's home at the time there was an elderly gentleman, by the name of Rodriguez, and Peter Balmaceda, an old friend of her father. Her mother was in the bedroom with her baby sister. She and her father went back in the kitchen and she told him everything that had happened; that Frank had come home and that he was drinking; that he had a knife and that he would not give back the baby girl. Then she asked her father to go and get the baby, that she was pretty sure Frank was going to hurt her. She testified that she was very nervous, could hardly stand and was crying. She then testified that her father told her, 'You and Frank have had a lot of trouble, but that is all right. If I come and fix things for you to go back to Frank,' to which she interjected 'I would not go back to Frank at all.' Then her father said 'Well, Alice, you stay here and I will go and get your baby girl. I will fix up everything for you.' She testified that she was too nervous to go with him and stayed in the living room, and Mr. Balmaceda went with him to West Tampa to get the baby.

It was when they had reached Frank's apartment and the appellant had gone up to the top of the stairs, leading to the floor where Frank's apartment was, that Frank came out of a nearby door, and the altercation occurred in which the appellant stabbed Frank Zatarain with a knife, which wound was so deep and serious as to cause his death. He testified that he had picked up the knife, which was a pocket knife, at his house as he left and put it in his outside overcoat pocket.

The only eyewitnesses to this tragedy were Balmaceda and the defendant himself. The State placed Balmaceda on the stand and after a few preliminary questions the following is disclosed by the record.

'Q. Was Mario angry or mad? A. He looked like he lost his head.

'Q. Say he looked like he lost his head? A. Yes, sir.

'Q. What did he say, if anything there, to you, he was going to do when he got over to West Tampa? A. Well, at present when he was going to West Tampa, he was excited and everything like that. I can't remember much about what he said when he was going down to West Tampa.

'Q. Now let's get this straight, Mr. Balmaceda, you testified the next day before Mr. Umstot, didn't you? A. Yes, sir.

'Q. That was the next day while it was fresh in your mind? A. Well, it may be that my mind was not refreshed so much.

'Q. I will ask you then if you didn't testify to Mr. Umstot and if you didn't testify before the Grand Jury what he said there at the house before he left, as to what he was going over to West Tampa to do after he got there? 'By Mr. Pierce: I object to that on the ground that it is an attempt to crossexamine the State's own witness.

'It is an attempt to impeach the State's own witness.

'By the Court: Objection overruled.

'By Mr. Farrior: I just want to get this straight now. This witness has taken the stand and keeps talking about what a good friend he is to the defendant.

'By Mr. Pierce: I object to arguing that before the jury.

'By Mr. Farrior: I am taken by surprise and I want to cross-examine this witness as to what he stated the next day and before the Grand Jury, if he didn't testify certain things at that time.

'By Mr. Pierce: Objected to on the ground that the proper predicate has not been laid.

'By Mr. Farrior: I will withdraw the question.

'Q. Mr. Balmaceda, I want you to tell this jury what if anything Mr. Hernandez said there at the house before he left as to where he was going and what he was going to do?

'By Mr. Pierce: I object to that on the ground that it is repetition. The witness has already answered that he didn't remember.

'By the Court: I will let him answer it and clear it up.

'A. When he left there he said, well, I can't remember exactly. I know I said it. The condition I was, I must have been excited or nervous and something like that. He said 'He will kill me or I will kill him.' see? That is the words he said, but I don't know in the condition I was what it was he said there or at the other house, because I must have been confused. In one house or the other.

'By Mr. Farrior: Q. Are you now trying to apologize to the jury for what you said at that time?

'By Mr. Pierce: I object to his accusing his own witness that he is trying to apologize to the jury. Mr. Farrior put him on and he vouches for him.

'By Mr. Farrior: He perjured himself then or now, and if he has perjured himself we want to know it. We are not going to be indicting people and trying them on perjured testimony, and we want to know from this witness what happened that night truthfully, and I ask to proceed with the examination of the witness.

'Mr. Pierce: I am perfectly willing that all the facts be gone into, but I think it is unfair to the defendant on trial for the State Attorney, in the presence of the jury, to accuse or impute to the said witness, whom the State Attorney has had in his office all morning, to put him on the stand and impute to him that he is trying to apologize to the jury.

'By Mr. Farrior: I think his appearance shows he is a very hostile witness and I think I have the right to proceed.

'By the Court: Go ahead.'

Counsel for the defendant, a bit later, the jury having retired on order of the Court, interposed a motion that the court declare a mistrial, basing his motion upon the above-quoted statements made by the State Attorney with reference to perjury, and being taken by surprise by the testimony of the witness, which witness had given no testimony unfavorable to the State. This motion was denied, and the taking of testimony resumed.

The witness, a little later, on crossexamination, denied that the defendant had made such a statement, as that he had been asked about, on the street car trip to West Tampa, but stated that he did make it shortly after he met the deceased at the top of the stairs, and after some words were passed that witness did not hear, and after the deceased had said, 'Lets have it out in the street.'

Later on, counsel for the State introduced the testimony of the stenographer who had taken down the sworn testimony of the witness when he was questioned by the Assistant State Attorney, or rather that part of it (some six questions and answers) which were contradictory, in part at least, to witness' testimony on the stand. One of these questions and answers was: 'All the time you were riding on the street car you were trying to...