Jones v. State
| Citation | 35 Fla. 289,17 So. 284 |
| Parties | JONES v. STATE. |
| Decision Date | 05 April 1895 |
| Court | United States State Supreme Court of Florida |
Error to circuit court, Duval county; Rhydon M. Call, Judge.
William Jones was convicted of murder, and brings error. Affirmed.
Syllabus by the Court
1. The better practice, in the examination of veniremen upon their voir dire, is to permit the questions to be asked by the counsel in the case. Still there is nothing in the statute upon the subject to prohibit the court from exclusively burdening itself with the entirety of such examination, if it sees fit to do so.
2. A map was admitted in evidence without objection by the defendant, but after it had been admitted he moved to strike it out. The court struck it out partially, and after further reflection, with reasonable promptness, struck it wholly out of evidence. Held, that the evidence, not having been objected to, was received by consent, and error cannot be predicated upon its receipt, and that a party cannot complain of evidence being stricken out upon his own motion.
3. When the evidence upon which it is predicated is stricken out there is nothing to which cross-examination is applicable and error cannot be founded upon a refusal to allow such cross-examination.
4. A new trial should not be granted merely to afford the defendant an opportunity to show that one of the state's witnesses has made statements inconsistent with his testimony at the trial.
5. The rule excluding hearsay evidence has application to affidavits upon motions for new trials as well as other legal proceedings. It is not sufficient for a defendant in a motion for a new trial upon the ground of newly-discovered evidence to state what was told him by his counsel as having been told the counsel by some other person. The affidavit of the person who has knowledge of the facts should be offered, or a good reason shown for the failure to offer it.
6. A new trial upon the ground of newly-discovered evidence should not be granted upon the unsupported affidavit of the defendant.
COUNSEL A. M. Michelson, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was convicted in the circuit court of Duval county of the murder of one Florence Jones by stabbing her with some sharp instrument, and sentenced to death. We consider the errors assigned in their order. When a venireman named Hoover was called for examination upon his voir dire the presiding judge examined him, and announced that he was qualified. The counsel for the defendant then asked permission of the court to examine the juror. The court would not permit such examination by counsel. Counsel for the defendant then handed the judge a written list of questions that he desired asked of the venireman, and the court complied with the request, and asked the questions requested. The record shows that this venireman was not sworn upon the jury. Whether he was challenged or pronounced disqualified upon further examination does not appear. The ruling of the court refusing to permit counsel to interrogate this juror, and conducting the examination itself upon interrogatories prepared by the defendant's counsel, is the basis of the first assignment of error. The question raised by this assignment has already been settled in this state in the case of Pinder v. State, 27 Fla. 370, 8 So. 837. The court there held that under our statute, while the better practice was to permit examination of veniremen upon their voir dire by the counsel in the case, still there is nothing in the statute to prohibit the court from exclusively burdening itself with the entirety of such examination, if it sees proper to do so. As this court has, however, announced that the better and more prevalent practice is to permit such examinations to be made by the counsel in the case, the circuit courts should conform to such method.
The second assignment is predicated on admitting in evidence a map made by one F. O. Nichols. An examination of the bill of exceptions contained in the record shows that F. O. Nichols, a witness for the state, testified that he was a civil engineer by profession, and had made a diagram or map of certain streets and points in the city of Jacksonville, and that such diagram was a correct one. The diagram was then submitted in evidence without any objection from the defendant; and counsel for the state and defendant both made elaborate examination and cross-examination, and redirect examination and recross-examination, as to distances and direction of points and localities indicated by the same. When these lengthy examinations were concluded, the hour for the recess of the court for dinner had about arrived. The counsel for the defendant then moved to strike the map from the case, on various grounds. Two points indicated by the map or diagram had been shown by other testimony to be correctly located. The other points were located by Dr. Nichols upon information not shown, except by hearsay testimony in the case, to be correct. The circuit judge held that the map was admissible as to the two points shown by the testimony to be correctly located, but only to that extent, and instructed the jury that all other testimony about the map was ruled out, and that it should not be considered by them. After other slight examination and cross-examination of the witness Nichols, the court adjourned until 2 p. m. Immediately upon the assembling of the court, at 2 p. m., the judge announced that the motion to strike the map from the evidence was granted. No injury has resulted to the defendant by this ruling. The map was admitted without objection. When the defendant's counsel reached the conclusion that it was not favorable to his client, he moved the court to exclude it. The court granted his motion; he gained his point. It was not excluded when offered, because defendant did not ask to have it excluded. From his making no objection to the testimony, the court inferred that he desired it offered to the jury. It was evidence received by consent of parties. The court struck it out with reasonable promptness, after it was requested so to do. If one desires to object to the introduction of improper evidence, he should do so when it is offered.
After the court had ruled that the Nichols map or diagram was admissible in evidence as to the two points located by the testimony, and before its ruling excluding it altogether, the counsel for the defendant asked the witness Nichols to take a sheet of paper, and make a map indicating the two points which the court had decided to be in evidence. The state attorney does not seem to have objected, and the record is very indefinite as to the ruling, if any, made by the court upon this subject. Admitting, however, that an adverse ruling was made, it could not have harmed the defendant. The request for a map to be made by the witness Nichols was in the nature of a cross-examination upon his testimony as to the map made by him, and which, as to two points of location, had been decided by the court to be properly in evidence. The...
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