Jenkins v. State
| Decision Date | 19 October 1909 |
| Citation | 50 So. 582,58 Fla. 62 |
| Parties | JENKINS v. STATE. |
| Court | Florida Supreme Court |
Headnotes Filed November 24, 1909.
Error to Circuit Court, Taylor County; B. H. Palmer, Judge.
Dave Jenkins was convicted of breaking and entering a storehouse with intent to commit petit larceny, and he brings error. Affirmed.
Syllabus by the Court
Questions on the cross-examination must be confined to the matters elicited on the direct, unless to test memory, credibility etc.
Error in excluding a question is without injury, where the question is afterwards answered without objections.
Where it is sought to show drunkenness of the defendant in excuse for crime, questions not limited to the condition of the defendant, but tending to raise the immaterial issue of the use of intoxicating liquor by 'the boys,' are properly excluded.
Paying for stolen property will not purge the original taking of its felony, or constitute a defense to a prosecution therefor and hence evidence of that fact is properly excluded.
The defendant cannot show self-serving acts before or subsequent to the crime, for this would permit him to make evidence for himself.
After a witness has been examined in chief, and is recalled in rebuttal, the court may properly prevent a simple repetition of his testimony. A party, after his examination of a witness, and after closing his testimony, has no absolute right to recall this witness to establish matters not in rebuttal. Whether this rule ought to be varied is a question for the trial court; and an appellate court, if it interferes at all, will only do so where it sees that injustice has been done through this action.
To constitute the crime of breaking and entering a storehouse with intent to commit petit larceny, the defendant must have had an intent to commit the misdemeanor in the house otherwise, the breaking and entering would amount to a trespass.
Upon the trial of a defendant for breaking and entering with intent to commit a misdemeanor, his intoxication, though voluntary, becomes a matter for consideration by the jury with reference to the ability of the accused to form or entertain such intent. If, therefore, the defendant was too intoxicated to entertain or form this essential particular intent, such intent could not exist, and the crime of which it is a necessary element could not be committed by him.
A criminal intent is not necessarily implied from the simple fact of breaking and entering; but the question as to whether the defendant was capable of the criminal intent is a question of fact, to be decided by the jury from all the circumstances of the case.
Upon a trial for breaking and entering with intent to commit a misdemeanor, the verdict of guilty will not be set aside upon the ground of drunkenness of the defendant, where the evidence falls short of showing that he was intoxicated at or immediately before he broke and entered the building to such an extent that he was unable to form or entertain the intent to commit the misdemeanor charged.
COUNSEL L. E. Roberson, for plaintiff in error.
Park Trammell, Atty. Gen., for the State.
The plaintiff in error was convicted of the crime of breaking and entering a storehouse of J. N. Goodman with intent to commit the misdemeanor of petit larceny.
On cross-examination of the prosecuting witness, Goodman, counsel for the defendant asked the following question: 'Did you give the boys some whisky while they were there that morning?' In the same way, the defendant asked the state's witness, Dick York, the following question: 'Did the boys drink anything while in there?' Objections to these questions were sustained, and these rulings are made the basis of the first and second assignments of error. There was no error here. The first question was not in cross of anything brought out on the direct examination. Even if the second question could be said to be in cross of the direct examination of the witness, it was fully answered upon cross-examination of this witness, when he was recalled by the state in rebuttal later on. Besides, the defendant did not make the materiality of these questions to appear; and if they were intended to show the drunkenness of the defendant in excuse for the crime, the inquiry was not limited to the condition of the defendant, but tended to raise the immaterial issue of the use of intoxicating liquor by 'the boys.'
The third, fourth, fifth, sixth, seventh, and eighth assignments of error have been argued and may be considered together. They are based upon the action of the court in sustaining objections to questions that sought to elicit the information that the defendant subsequently went to Mr. Goodman and made reparation by paying for the property taken. There was no error here. Paying for stolen property will not purge the original taking of its felony, or constitute any defense to a prosecution therefor; and hence evidence of that fact is properly excluded. 8 Ency. Ev. 130; Truslow v. State, 95 Tenn. 189, 31 S.W. 987. See Thalheim v. State, 38 Fla. 169, 20 So. 938.
These acts of the defendant constituted no part of the res gestae of the offense, and the state had introduced no testimony bearing on this point. The defendant cannot show self-serving acts before or subsequent to the crime; for this would permit him to make evidence for himself. Clark's Crim. Proc. 511; Thomas v. State, 47 Fla. 99, 36 So. 161; Fields v. State, 46 Fla. 84, 35 So. 185.
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White v. State
... ... the nature of self-serving declarations, which we have ... several times held to be inadmissible. Fields v ... State, 46 Fla. 84, 35 So. 185; Thomas v. State, ... 47 Fla. 99, 36 So. 161; West v. State, 58 Fla. 77, ... 43 So. 445; Jenkins v. State, 58 Fla. 62, 50 So ... 582. The twenty-fourth assignment is based upon the ... sustaining of an objection to the following question ... propounded to Fred Watson, a state witness, 'Did you make ... an affidavit in this case on the change of venue ... proposition?' There was no error ... ...
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Padgett v. State
... ... on cross-examination which seek to test the memory or ... credibility of the witness. In addition to the authorities ... just cited, see, also, Pittman v. State, 51 Fla. 94, ... 41 So. 385, 8 L. R. A. (N. S.) 509; Vaughn v. State, ... 52 Fla. 122, 41 So. 881; Jenkins v. State, 58 Fla ... 62, 50 So. 582; Andrew v. State, 62 Fla. 10, 56 So ... 681. The principle which should govern is well stated thus in ... 1 Thompson on Trials (2d Ed.) § 415: 'The general rule, ... therefore, is that a cross-examination should be permitted as ... to all matters ... ...
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Linehan v. State
...the voluntary intoxication defense in cases involving specific intent crimes. See, e.g., Cirack (first-degree murder); Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909) (breaking and entering with intent to commit misdemeanor); Heathcoat v. State, 430 So.2d 945 (Fla. 2d DCA 1983) (burglary, r......
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Penn v. State, 74123
...cannot be brought out on cross-examination because a defendant is not permitted "to make evidence for himself." Jenkins v. State, 58 Fla. 62, 65, 50 So. 582, 583 (1909); Turner v. State, 99 Fla. 246, 126 So. 158 The statements Penn's counsel tried to introduce went beyond the scope of direc......