Hisler v. State
| Decision Date | 21 December 1906 |
| Citation | 42 So. 692,52 Fla. 30 |
| Parties | HISLER v. STATE. |
| Court | Florida Supreme Court |
In Banc. Error to Circuit Court, Duval County; Rhydon M. Call Judge.
Tom Hisler was convicted of murder, and brings error. Reversed.
Syllabus by the Court
In a prosecution for murder, it is not error to refuse to give an instruction that the defendant would be justified in taking the life of one or all of several persons who had conspired together to kill him, when the instruction does not state that the defendant must have known of, or had reasonable ground to believe in, the existence of such conspiracy, or that the conspirators must have been present in the furtherance of their design, or that the killing of one or all of such conspirators must have been necessary or apparently necessary to save the life of the defendant or to protect him from great bodily harm.
It is not error to refuse to give a charge which assumes facts not conceded in the evidence, and which states as law matters of fact which the jury should determine.
It is not error, in a prosecution for murder, to refuse a charge 'that if you find from the evidence that the deceased was at or near the place of the killing, concealed there early in the morning of the killing, and this fact was communicated to the accused, then he had a right to arm himself, and believing that the deceased had left the place where he had been between the defendant and his oxen, then the action of the defendant in hunting his oxen was the act of a prudent man, doing those things he had a right to do, and, if assaulted, was justified in taking the life of the deceased and you should find him not guilty, and acquit him,' since it assumes facts not conceded in the evidence, and states as law matters of fact which the jury should determine, and, besides, it instructs the jury that the defendant would be justified in killing the deceased under circumstances not warranted by law.
The refusal to charge the jury 'that a surgeon or physician testifying to fact, which a nonprofessional or nonexpert witness may testify to, such as the wound, as to its location upon the body of the deceased, or the number of wounds upon a person, and whether they were located in the front part of the deceased, or back part, is nonexpert testimony, and one witness who knows the facts of the existence of such wounds and their location upon the body of the deceased is as competent to testify as another to testify to such facts, if he can relate the circumstances which he is testifying about intelligently, and being a professional witness or expert upon such facts does not entitle such witness to more credit than to any other witness as to such facts testified about,' is not error, since the charge as framed calls particular attention to a portion of the testimony of some of the witnesses, and the latter part of the charge as expressed has a tendency to invade the province of the jury as to the relative credibility of certain witnesses.
Charges which state correct abstract propositions of law should not be given to a jury, when they are not applicable to the facts of the case being tried.
Immaterial testimony, objected to, should not be admitted in a prosecution for murder, even though the court be of opinion that it is harmless to the defendant; and such immaterial testimony, if admitted, should be stricken on proper motion.
A map, shown by a witness to have been made by him from a survey to locate objects and points indicated to him, and to be an accurate map of such objects and points, is admissible in evidence for the consideration of the jury, in connection with testimony relevant to the case which the map is intended to illustrate or explain.
Evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not admissible, where the conditions attending the alleged occurrence and the experiments are not shown to be similar. The similarity of circumstances and conditions go to the admissibility of the evidence, and must be determined by the court.
Evidence of an experiment should be received with caution, and should be admitted only when it is obvious to the court, from the nature of the experiments, that the jury will be enlightened, rather than confused. In many instances a slight change or difference in the conditions under which the experiment is made will so distort the result as to wholly destroy its value as evidence, and make it harmful, rather than helpful.
If, in the discretion of the trial court, proffered evidence of an experiment is rejected, the appellate court will not review the ruling, unless an abuse of discretion appears. But where evidence of an experiment is admitted over proper objections, and the rule as to similarity of circumstances and conditions attending the occurrence and the experiment does not appear to have been complied with in admitting the evidence, the appellate court will review the ruling; and if error be found therein, and it does not appear from the whole record that no harm could have resulted to the defendant from the admission of such evidence, the judgment may be reversed.
Targets into which shots have been fired from a gun as an experiment should not be admitted in evidence over objection, where it does not appear that the same or a similar gun was used, or that the shot, powder, and loading were similar, or that the target was so placed as to be similar in position to the object in controversy.
Leonidas E. Wade and John E. Hartridge & Son, for plaintiff in error.
W. H. Ellis, Atty. Gen., and Jno. L. Doggett, for the State.
The plaintiff brings writ of error to a judgment of the circuit court for Duval county convicting him, and sentencing him to the state penitentiary for life, for the murder of Eli Simmons on August 11, 1905.
A motion for a new trial having been overruled, and an exception taken, such ruling is assigned as error.
An exception was taken, and error is assigned on the refusal of the court to give the following charge requested by the defendant: The last sentence of this charge is defective, in that it justifies the defendant in killing either or all of a band of conspirators, irrespective of whether or not he knew of, or had reasonable ground to believe in, the existence of the conspiracy, or that the conspirators were present in furtherance of the conspiracy. The charge is further defective in its omission of the idea that the killing, to be...
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... ... required by section 4, Declaration of Rights, State ... Constitution ... The ... witness who referred to a drawing in giving testimony stated ... that it was a correct diagram of the location. If, under the ... rule stated in Hisler v. State, 52 Fla. 30, 42 So ... 692, the diagram was not properly used in evidence, the ... error, if any, was manifestly harmless, as the diagram was ... not essential to the merits of the verdict [85 Fla. 361] ... found, and it could not reasonably have prejudiced the ... defendant ... ...
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...is obvious to the court, from the nature of the experiments, that the jury will be enlightened, rather than confused." Hisler v. State, 52 Fla. 30, 42 So. 692, 695 (1906) (finding error in the trial court's failure to exclude prosecution's target-shooting experiment to show buckshot pattern......
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