Johnson v. State
| Decision Date | 24 March 1908 |
| Parties | JOHNSON v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Putnam County; James T. Wills, Judge.
Vance Johnson was convicted of murder, and brings error. Reversed.
Syllabus by the Court
The defense should be permitted to recall a state's witness who has just left the stand, for the purpose of laying the foundation for impeachment.
Where there are peculiarities in the footprint of the defendant evidence is admissible that the tracks thus made are 'similar' to those found near the scene of the homicide.
The trial court may refuse opinion evidence or experiments in the presence of the jury as to whether a spur strap attached to a shoe would make an impression on sandy soil.
Where the defense of an alibi is not set up, the state should not be permitted to argue to the jury that there is 'a great break in the pretended alibi.'
S. J. Hilburn and E. M. Calhoun, for plaintiff in error.
The plaintiff in error was indicted in the circuit court for Putnam county for the murder in the first degree of John A Germond. He was tried and convicted, and the death penalty was pronounced against him. No errors are assigned upon the record proper, nor upon the charges of the court. The assignment based upon the refusal to instruct upon circumstantial evidence is expressly abandoned.
The first assignment is upon the refusal of the court to permit the recalling of William Davis, a state witness, to allow the defendant to lay the foundation for impeachment. This witness had testified to seeing the accused, about 2 o'clock in the morning of the night that Germond was killed, with a shotgun in his hand and in the vicinity of the homicide, and to other suspicious circumstances. The defense, after putting two questions, announced no further questions, and the witness stood down. Thereupon, and before any further steps in the case were taken, the defense at once asked that he be placed back on the stand, stating that it was desired to show that the witness had said to others then in court that he had not actually seen the gun, but had heard another say he saw it. The state objected to the recall of the witness, and the court sustained the objection; no reason being assigned for the action. We think this error.
There is nothing in the bill of exceptions, which appears to be unusually full and complete, to justify the refusal. There is nothing to indicate that the attorneys for the defense were dilatory or trifling with the court. To the contrary, the whole trial appears to have occupied but a single day, and the cross-examination of the state's witnesses was short and concise. The witness so sought to be impeached had just stood down, and presumably was still immediately accessible. Human life was involved, and we cannot conceive why the court should have sought to apply so narrow a rule of procedure.
The precise point may not have been passed upon by this court; but the converse has been frequently decided. We have held that been frequently decided. We have held that the court committed no error in permitting the state under similar circumstances to recall a witness for the defense, in order to lay the foundation for impeachment, and have said that in the furtherance of justice the discretion of the trial court in relaxing the rules of evidence to that end should be liberally exercised. Brown v. State, 40 Fla. 459, 25 So. 63; Ortiz v. State, 30 Fla. 256, 11 So. 611; Burroughs v. State, 17 Fla. 643; Thomas v. State, 47 Fla. 99, 36 So. 161; Robinson v. State, 50 Fla. 115, 39 So. 465. These cases, while recognizing a large discretion in the trial courts in the matter of relaxing the rules of evidence, are instructive, in that they assert the larger law that furtherance of justice should be the guide for courts, rather than the blind following of rules of convenience that may have been adopted from time to time as more likely to bring about the main object of all courts--to see that justice is administered under the forms of law.
There are most respectable authorities holding that the right to recall for impeachment is absolute; but our precedents seem to forbid us following them, and it is easy to imagine circumstances where a court, to protect its dignity and the rights of the public in the speedy orderly administration of the criminal laws, would be justified in refusing the request, and therefore we content ourselves now in saying that the discretion, under the facts disclosed on this record, should have been exercised to allow the recall, and the refusal so to exercise that discretion constitutes error.
The court permitted a deputy sheriff who arrested Johnson to testify that when taking him to the inquest he noticed that Johnson's left foot made a mark similar to one at the place of the homicide, and this is assigned as error. The testimony is not objectionable as giving the opinion of a nonexpert witness. The witness did not say that in his opinion the tracks were made by the same person, testimony upheld as proper in Alford v. State, 47 Fla. 1, 36 So. 436 under circumstances not unlike those here disclosed, but merely testified to a preliminary collective fact that there were similarities...
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