Hodge v. State

• Decision Date: 07 June 1890
• Citation: 7 So. 593,26 Fla. 11
• Court: Florida Supreme Court
• Parties: HODGE v. STATE.

7 So. 593

26 Fla. 11

HODGE v. STATE.

Florida Supreme Court

June 7, 1890

Syllabus by the Court

SYLLABUS

1. An indictment will not be quashed because it does not give the dimensions of a wound; nor will an indictment in a capital case be quashed where it charges that the accused, with an assault, etc., 'with force and arms, at,' 'in and upon one M., feloniously, willfully, of his malice aforethought, and from a premeditated design to effect the death of M.,' upon the ground 'that the indictment charges the accused with both murder at the common law and under the statute.' The words 'feloniously willfully, of his malice aforethought,' may, if objectionable, be treated as surplusage.

2. A venire man stated that he has no bias against the accused whereupon counsel for accused asked for reasonable time to procure witnesses to show the bias of the juror, but without stating how long it would require to procure such witnesses their residence, or the facts to be proved by them. Held that there was no error in refusing the request made by counsel for defendant.

3. An assignment of error which is so general and vague that the appellate court is in doubt as to what is meant by it will not be considered.

4. It is not error for the trial judge to propound leading questions to witnesses of tender years for the purpose of ascertaining whether or not the witnesses understand the obligations of an oath, and an objection to this mode of examination of the witnesses is frivolous.

5. Evidence was introduced to prove threats of the prisoner 'to kill a man before sundown' on the day M. was killed. Held to be a matter to be given such weight by the jury as they, under all the circumstances, think it entitled to.

6. Continuous threats made by the prisoner against the deceased, continuing for several months down to within three weeks of the homicide, were properly admitted in evidence.

7. An objection that the court erred in overruling the objections to questions put to F. is too vague. The questions, and the objections thereto, must be pointed out; otherwise they will not be considered by the appellate court.

8. A witness was asked his conclusions or understanding of the conduct and intentions of the accused. Held, that the question was properly excluded, and that the witness should have been questioned as to the acts, etc., of the accused, leaving the jury to draw their conclusions therefrom as to his mental condition.

9. When a defendant brings himself within the rule in introducing evidence for the purpose of impeaching the credibility of a witness, it is error to exclude such evidence.

10. When witnesses for the defense were introduced, they were cautioned by the state attorney to tell the truth, and nothing but the truth. Held, that the state attorney had no authority to thus caution the witnesses, and that such remarks had a tendency to confuse witnesses, and to cast suspicion upon their evidence.

11. Upon the subject of insanity the trial judge charged the jury that, 'when the defense of insanity is set up as an excuse for crime, burden of proof is upon the person alleging it, and he must prove it to the satisfaction of the jury, beyond a reasonable doubt; otherwise the presumption of the sanity of the prisoner will remain in force.' Held to be error. When the defense of insanity is relied upon, and evidence is introduced which tends to overthrow the presumption of sanity, if, upon the whole evidence, the jury entertain a reasonable doubt of the sanity of the prisoner, they must acquit, regardless of whether it be adduced by the prosecution or the defendant, and that the accused is not required to establish his insanity beyond a reasonable doubt. But the jury are not to acquit the prisoner upon any fanciful ground that, though they believe he was sane at the time the act was committed, yet, as there may be a rational doubt of such sanity, he is therefore entitled to an acquittal.

COUNSEL

Miller & Spencer, for plaintiff in error.

William B. Lamar, Atty. Gen., for defendant in error.

OPINION

MITCHELL J.

Writ of error to the circuit court of Marion county.

On the 15th day of January, 1888, Hodge, the plaintiff in error, was convicted in the circuit court of Marion county of murdering his brother-in-law, Jesse J. Marlow, by shooting. Motions were made for new trial and in arrest of judgment, which motions were overruled, the accused sentenced to the penitentiary for life, and the cause comes before this court upon writ of error.

The first error assigned is that the court refused to quash the indictment. One of the grounds urged for quashing the indictment was that it did not give the dimensions of the wound which it is alleged killed Marlow; and the case of Keech v. State, 15 Fla. 608, and Bishop's Criminal Procedure, are cited as authorities to support this proposition. This objection is not well taken. In the Keech Case, Judge RANDALL, for whom we have the highest respect, in speaking for the court, says: 'The dimensions of the wound, if it be an incised wound, are required to be stated by most of the authorities.' We cannot give our assent to this conclusion. While saying that most of the authorities require such description of the wound when it is an incised wound, no authorities are cited in support of the proposition; and, upon examination of the subject, we find that the converse of the proposition is true, and that the decision in the Keech Case is in conflict with the great current of authorities, and in fact we have not been able to find any late case that is not in conflict with the decision in that case. The dimensions of a wound are not required to be stated in the indictment in any case. 2 Bish. Crim. Proc. § 518 et seq., and cases there cited; Heard, Crim. Law, 682; Com. v. Woodward, 102 Mass. 159, and cases cited; Moore v. State, 15 Tex.App. 1; People v. Steventon, 9 Cal. 273; State v. Conley, 39 Me. 78; Rex v. Tomlinson, 6 Car. & P. 370; Dias v. State, 7 Blackf. 20; Lazier v. Com., 10 Grat. 708.

Another reason urged for quashing the indictment is that it charges the accused with both murder at the common law and under the statute. The indictment charges that the defendant, on, etc., 'with force and arms, at,' etc., 'in and upon one Jesse J. Marlow, feloniously, willfully, of his malice aforethought, and from a premeditated design to effect the death of the said Jesse J. Marlow,' etc. The statutory offense is correctly charged in the indictment, and we can see no objection to it; but, if the words objected to, 'feloniously, willfully, of his malice aforethought,' are not necessarily implied in those defining 'murder' under the statute, they may, without the least prejudice to the accused, be treated as surplusage. But, as before stated, we can see no valid objection to the indictment upon the grounds urged by counsel for the accused, nor upon any other grounds. The conclusion we have come to in this respect is not in conflict with either the case of Bird v. State, 18 Fla. 493, or that of Denham v. State, 22 Fla. 664. The other grounds of the motion were properly overruled.

The third error assigned is that the court erred in overruling the challenge of the defendant to the venire men J. L. Miller and L. Bryant. The venire man Miller stated that he had no bias against the accused, whereupon counsel asked for reasonable time to procure witnesses to show the bias of the juror, but without stating how long it would require to procure such witnesses, their residence, or the facts to be proved by them, thus showing an attempt to delay the trial of the cause without giving sufficient reasons therefor. The objection to the venire man Bryant was that he was summoned by Fergerson, a state witness; but the objection was not well taken, because each of the jurors summoned by Fergerson stated on oath that Fergerson had not spoken to them about the case of State v. Hodge, and the list of jurors summoned by Fergerson was furnished him by the sheriff, thus leaving no discretion to Fergerson whereby he could summon jurors prejudiced against the accused. The objection, under the circumstances, was frivolous.

The fourth error assigned is that the court erred in admitting the testimony of Dr. S. H. Blitch; but, as to how the court erred, the record does not show, only that the indictment did not give the dimensions of the wound.

The fifth error assigned is that the court erred in admitting the testimony of each of the other state witnesses, which is shown as objected to by the defendant. This objection is too general. It may apply to all or any two of the witnesses, leaving it for the court to learn, as best it can from the very voluminous and imperfect record before it, as to what evidence was admitted over the objection of the prisoner.

The sixth error assigned is that the court erred in asking leading questions of the witnesses Francis Johnson and Enoch James, and in holding that they were competent to testify. This objection was not well taken. The record shows that both these witnesses were of tender years, and that the questions propounded to them by the court were for the purpose of ascertaining whether or not they understood the obligations of an oath; and, their answers to the questions thus propounded to them showing that they each understood such obligation, there was no error in declaring them competent, and allowing them to testify. The objection to the mode of the examination of the witnesses, and to their being allowed to testify, was wholly frivolous.

The seventh error assigned is that the court erred in refusing to strike out the testimony of Enoch James as to the threats of Hodge. This witness, among other things, testified that, on the morning Marlow was killed, he saw the defendant...