Herndon v. State

• Decision Date: 24 February 1917
• Citation: 74 So. 511,73 Fla. 451
• Parties: HERNDON v. STATE.
• Court: Florida Supreme Court

74 So. 511

73 Fla. 451

HERNDON v. STATE.

Florida Supreme Court

February 24, 1917

Error to Circuit Court, Madison County; D. J. Jones, Judge.

D. B Herndon was convicted of manslaughter, and he brings error. Affirmed.

Browne C.J., dissenting, and Taylor, J., dissenting in part.

Syllabus by the Court

SYLLABUS

In passing upon an assignment questioning the correctness of the ruling of the trial court in denying a motion for new trial which is based upon the sufficiency of the evidence to sustain the verdict, the guilding principle for an appellate court is not what it may think the jury ought to have done or what such court may think it would have done had it been sitting as a jury in the case, but whether as reasonable men the jury could have found such verdict. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.

While the legal effect of evidence is a question of law to be passed upon by the court when properly presented, the credibility and probative force of conflicting testimony are for the determination of the jury.

The answer of a witness on cross-examination respecting any fact irrelevant to the issue will be conclusive, and no question relating to facts irrelevant to the issue can be put on cross-examination merely for the purpose of impeaching the credit of the witness by contradicting him.

In a prosecution for murder, objections interposed to questions propounded on the direct examination of a witness are properly sustained, when such questions seek to elicit information from the witness as to the distance between the defendant and the deceased when the fatal encounter took place and as to how far from the deceased a certain designated track was, and it has been made to appear from the examination of such witness that he was not present at the tragedy, but had visited the place thereof after it had occurred and saw tracks there, and that all the information which the witness possessed as to the distance between the defendant and the deceased at the time of the shooting and as to the identity of the tracks which the witness saw was derived from statements made to the witness by the defendant and others.

Applications for new trial upon the ground of newly discovered evidence are looked upon by the courts with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial (2) the party must have used due diligence to procure it on the former trial; (3) it must be material to the issue; (4) it must go to the merits of the cause, and not merely to impeach the character of a witness; (5) it must not be merely cumulative; (6) it must be such as ought to produce on another trial an opposite result on the merits. The party applying must make his vigilance apparent, for if it is left even doubtful that he knew of the evidence, or that he might but for the negligence, have known of and produced it, he will not succeed in his application.

In passing upon a motion for a new trial upon the ground of newly discovered evidence, even if it can be properly assumed that the affidavits of the defendant and his attorneys show that they had used due diligence to procure the newly discovered evidence on the former trial, that it is material to the issue, and that it can be said to go to the merits of the cause, if it is not of such a nature that it ought to produce on another trial an opposite result on the merits, and if it is merly cumulative, such motion is properly denied.

Where newly discovered testimony runs simply to the matter of threats, and only tends to make more emphatic and clear what is already plain by the testimony, that the parties at the time of meeting were enraged against each other, held, that the court did not err in refusing a new trial on this ground.

Error cannot be assigned of the judge's failure to charge upon any question of law, unless the party desiring it shall have requested charges thereon.

Evidence examined, and found sufficient to support the verdict.

COUNSEL Chas. E. Davis, of Madison, for plaintiff in error.

T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

SHACKLEFORD J.

D. B. Herndon was indicted for the crime of murder in the first degree, tried before a jury, convicted of the crime of manslaughter, and sentenced to confinement at hard labor in the state prison for the period of seven years, from which judgment and sentence he seeks relief here by writ of error.

Seven errors are assigned, of which the first, third, and sixth are expressly abandoned. The first assignment argued is the seventh, which is based upon the overruling of the motion for a new trial, the grounds of which motion are as follows:

'(1) The verdict is contrary to the evidence.

'(2) The verdict is contrary to the law and the evidence.

'(3) The court erred in refusing to permit A. D. Stanton to testify as to the whole conversation had between him and A. H. Touchstone.

'(4) The court erred in refusing to permit A. D. Stanton to testify as to the distance, as pointed out by D. B. Herndon, between said Herndon and Henry Griffin at the time of the shooting of said Griffin.

'(5) The court erred in refusing to permit A. D. Stanton to answer the following question: 'How far from that place (the track indicating that a person had turned) was the last track toward Pinetta that seemed to be turned north?'

'(6) The court erred in refusing to permit A. D. Stanton to answer the following question: 'How far from the dead man was the last track toward Pinetta that seemed to be coming backward?'

'(7) The court erred in failing to instruct the jury as to what was justifiable homicide.

'(8) The court erred in giving the following instruction to the jury: 'If the evidence in this case should convince the jury beyond a reasonable doubt as to a moral certainty that the defendant, in Madison county, Florida, at any time within the two years immediately preceding the finding of this indictment, unlawfully killed Henry Griffin in the manner and by the means charged in this indictment, and the jury should not find from the evidence beyond a reasonable doubt that such killing was perpetrated from and with a premeditated design on the defendant's part to effect the death of the said Henry Griffin, and the jury should not find from the evidence beyond a reasonable doubt that such killing was perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life, then you should find the defendant guilty of manslaughter.'

'(9) Because of newly discovered evidence as set forth in the affidavit of Emery Welch hereto attached.'

The affidavit of Emery Welch, attached thereto, is as follows:

'Before me personally appeared Emery Welch, who being by me first duly sworn, deposes and says: That about a mile and a half from the town of Pinetta, Florida, near Taylor & Brady's mill, about a week before Henry Griffin was killed, he had a conversation with said Henry Griffin; that in said conversation affiant said that they are having some trouble around Pinetta over the blind tigers, and Henry Griffin replied that there was only one man giving them any trouble, and that was that low down Bert Herndon; that he was going to put a stop to it; that if he ever caught Bert Herndon in the right place he was going to kill him, and that would put a stop to it all; and affiant said that if he were Griffin he would not have any trouble about it, and Henry Griffin replied that he did not care anything for the trouble, and that he was going to get rid of Bert Herndon; that Griffin repeated this threat several times in different words.'

Then follows this affidavit of the defendant, D. B. Herndon:

'Before me personally appeared D. B. Herndon, who being by me first duly sworn, deposes and says: That he has read the affidavit of Emery Welch this day made, regarding a threat made about a week before Henry Griffin was killed, by said Henry Griffin to kill affiant; that affiant did not know of the facts set forth in said affidavit or any portion thereof or have any intimation thereof or have reason to believe that such facts existed, until since the trial and conviction of affiant for the killing of said Henry Griffin; that since said homicide, affiant has used due diligence to procure said testimony for the trial of said cause, and has inquired of, and has endeavored to procure from every person whom he had reason to believe knew of any fact material to the case, and has also had other persons to endeavor to secure all testimony material to the case; that he did not suppose or have reason to believe that said Emery Welch knew the facts set forth in his affidavit or any fact material to defendant's case, and that only since said trial and conviction said Emery Welch voluntarily came to said affiant and told him of the contents of said affidavit, and that immediately thereafter affiant informed his attorneys of said facts.'

Then follows this affidavit of Chas. E. Davis and R. H. Rowe, the attorneys for the defendant:

'Before me personally appeared C. E. Davis and R. H. Rowe, each of whom, being duly sworn, deposes and says each for himself that he did not know, or have reason to know, anything whatever of the existence of the facts set forth in the affidavit of Emery Welch hereto attached, prior to the trial of D. B. Herndon for the killing of Henry Griffin, and only knew of said fact since said trial when told of same by D. B. Herndon.'

We shall follow our established practice and consider only such grounds of this motion as are argued before us. Smith v State, 65 Fla. 56, 61 So. 120, and Thomas...