Higginbotham v. State

• Decision Date: 25 September 1900
• Citation: 29 So. 410,42 Fla. 573
• Parties: HIGGINBOTHAM v. STATE.
• Court: Florida Supreme Court

29 So. 410

42 Fla. 573

HIGGINBOTHAM v. STATE.

Florida Supreme Court

September 25, 1900

Error to circuit court, Marion county; William A. Hocker, Judge.

Christopher C. Higginbotham was convicted of larceny of a cow, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. It is not error to refuse to give instructions that have already been given substantially, though couched in different language.

2. Where one in good faith takes the property of another honestly believing it to be his own, or that he had a right to its possession, he is exempt from the charge of larceny but such belief should be an honest one, and not a mere pretense to shield himself from punishment.

3. While, as a general rule, witnesses are required to testify to facts, and to withhold their opinions derived from such facts, yet there are exceptional cases, and one of such exceptions is that 'the physical or mental condition or appearance of a person, or his manner, habit, or conduct, may be proved by the opinion of an ordinary witness, founded on observation.' 'An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts; but when the facts are not necessarily involved in the inference then the facts must be stated. In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given. Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible, whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury.'

4. Where part of a witness' answer to a question is admissible and part inadmissible, a motion to strike such answer is properly refused unless it is confined specifically to the inadmissible part of such answer.

5. Verdicts in criminal cases should be certain, and impart a definite meaning, free from ambiguity; and words that convey, beyond reasonable doubt, the meaning and intention of the jury, are sufficient, and all fair intendments should be made to sustain them. If the intention is clearly manifested, bad spelling or faulty grammar will not vitiate the verdict.

6. An appellate court cannot consider affidavits used in support of a motion for new trial, unless they are evidenced to it in and by a bill of exceptions.

COUNSEL

Raymond B. Bullock, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR C.J.

The plaintiff in error, hereinafter referred to as the defendant, was indicted at the fall term, 1899, of the circuit court for Marion county, for the larceny of a cow, and was tried, convicted, and sentenced at the spring term, 1900, of said court, and seeks a reversal by writ of error. The defendant, at the trial, requested four several charges that were refused to be given upon the ground, as expressed by the judge in his ruling thereon, that they had already been given in substance in other charges. After examination, we agree with the circuit judge that all of the instructions thus requested and refused, though couched in different language, had already been substantially given in charge to the jury; and, this being true, it is settled here bya a long line of decisions that there was no error in refusing them, even though they correctly stated the law. Sherman v. State, 17 Fla. 888; Carter v. State, 22 Fla. 553; Reddick v. State, 25 Fla. 112, 5 So. 704; Coleman v. State, 26 Fla. 61, 7 So. 367; Pinson v. State, 28 Fla. 735, 9 So. 706; Killins v. State, 28 Fla. 313, 9 So. 711; Bryant v. State, 34 Fla. 291, 16 So. 177; Butler v. State, 35 Fla. 246, 17 So. 551.

The judge gave the following instruction that was excepted to, and is assigned as error: 'Where one in good faith takes the property of another, honestly believing it to be his own, or that he had a right to its possession, he is exempt from the charge of larceny, there being no criminal intent; and, therefore, if the jury believe from the evidence that the defendant, Higginbotham, took the cow of Reynolds, as alleged in the indictment, honestly believing it to be his own, or that he had a right to its possession, the jury should find him not guilty. But the belief should be an honest one, and not a mere pretense to shield himself from conviction. Furthermore, if the jury have a reasonable doubt, arising from the evidence, as to whether Higginbotham took the said cow having such an honest belief as to his right to take it, the jury should give him the benefit of such reasonable doubt, and acquit him; in other words, if they have a reasonable doubt of the felonious intent of the defendant in taking the cow, they should acquit the defendant.' The contention made here is that the last paragraph of this charge is erroneous, misleading, and confusing to the jury in its use of the word 'whether'; that it has a tendency to mislead the jury into the belief that the onus was on the defendant to convince them beyond a reasonable doubt that he took the cow honestly believing that he had a right to take it. We do not think the charge susceptible of any such construction, but, on the contrary, think that it stated the law correctly.

The prosecuting witness for the state, J. W. Reynolds, after testifying that he went to the defendant's slaughter pen at about daylight in the morning, and found the defendant in the act of butchering the cow in question, was asked the following question by the state attorney: 'When you went up there, and found your cow in Mr. Higginbotham's slaughter house, how did he appear? How did he look when you approached him?' The question was objected to on the ground that it sought the opinion of the witness, and was therefore, inadmissible. The objection was overruled, and such ruling is assigned as error. The witness ansswered as follows: 'He looked plum lost; could say nothing; could hardly talk; choked up like; looked just like a man who had done something, and been caught up with,--nervous like.' The defendant moved to strike out this answer on the ground that it was an expression of opinion by the witness. The judge overruled the motion, and such ruling is assigned as error. There was no error in either of these rulings. While, as a general rule, witnesses are required to testify to facts, and to withhold their opinions derived from such facts, yet there are exceptional cases, and one of such exceptions is that 'the physical or mental condition or appearance of a person, or his manner, habit, or conduct, may be proved by the opinion of an ordinary witness, founded on observation.' Rule 64, p. 466, Lawson, Exp. Ev. The line of distinction between cases where an ordinary witness is permitted to testify to his opinion or conclusions and those where it is not permissible is tersely stated in Whart. Cr. Ev. §§ 458-460, as follows: 'An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts; but, when the facts are not necessarily involved in the inference (e. g. when the inference may be sustained upon any one of several distinct phases of fact, none of which it necessarily involves), then the facts must be stated. In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based. Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever a condition of things is such that it cannot be reproduced and made palpable...