Kersey v. State
| Decision Date | 05 April 1917 |
| Citation | 74 So. 983,73 Fla. 832 |
| Parties | KERSEY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, St. Lucie County; Jas. W. Perkins, Judge.
Charles B. Kersey was convicted of murder in the second degree, and he brings error. Affirmed.
Syllabus by the Court
As a general rule, ordinary witnesses are required to confine their testimony to facts, and are not permitted to give their opinions and conclusions; but to this rule there are certain exceptions, and as to whether or not the facts and circumstances testified to a case are of such a nature as to warrant the admission of the opinions and conclusions must be largely within the discretion of the trial judge, and an appellate court should not interfere with the exercise of such discretion unless a clear abuse thereof is made to appear.
Courts of justice exist for the administration and furtherance of justice, the object of a trial being to approximate justice as nearly as possible; and, unless it is made to appear to an appellate court that some injustice or wrong has been done a defendant in a criminal prosecution by permitting an ordinary witness to give his opinion or conclusion, such court will not interfere with the action of the trial court in admitting such testimony.
If the jury may be fully equipped by the testimony of the facts and circumstances as detailed by an ordinary witness--in other words, if all the data may be exactly reproduced by testimonial words and gestures, an ordinary witness should not be permitted to give his opinion, it being the province of the jury to form opinions and draw conclusions from the facts and circumstances given in evidence; but, where all the data cannot be exactly so reproduced, ordinary witnesses may where justice requires it, be permitted to give their opinions in connection with the facts upon which they are founded, in order that the jurors may be in a position to draw correct or proper conclusions therefrom.
Opinions of ordinary witnesses based upon or derived from their observation or experience may be admissible in evidence in connection with component facts, when, from the nature of the subject under investigation, no better evidence can be obtained.
Before an ordinary witness is permitted to give in evidence his opinion or conclusion concerning a matter he should be required to detail to the jury, so far as he is able to do so by testimonial words and gestures, all the facts and circumstances upon which his opinion is based, in order that the jury may have some basis by which to judge the value of the opinion; it should be made to appear to the trial court that the subject-matter to which the testimony relates cannot be reproduced and described to the jury precisely as it appeared to the witness at the time, and that the facts upon which the witness is called to express his opinion are such as men in general are capable of comprehending and understanding.
A mere preliminary question to a witness is not open to objection.
Where an answer to a question presents evidence which is illegal or objectionable on any known ground, the proper practice is a motion to strike it out and have the jury directed not to consider it; the movant specifying his objections to the evidence with like particularity as in objecting to questions.
A nonexpert witness in a criminal prosecution for murder, who has testified that he was a member of the coroner's jury that held the inquest and that he made an examination of the body of the deceased, may be permitted to testify that he saw no powder burns on the flesh.
It is of the utmost importance that the jury should hear the testimony given by witnesses, and when the trial judge is in doubt as to whether the jury can hear the testimony given by a witness, especially one of tender years, such judge may properly ask the jury if they can hear the testimony of the witness and, upon one of the jurors replying, 'not very well,' may direct the court reporter to read such testimony from his notes to the jury, and where, in response to a question from the trial judge, such witness states that his testimony as read was as he had given it, no error in having the testimony so read is committed.
The trial judge may not be said to emphasize improperly the testimony of a witness because the witness is speaking in such a low tone that the judge, apprehending that the testimony might not be audible to the jury, several times asked the jury if they could hear the witness, and requested the witness to 'talk up,' especially when the trial judge expressly states to the jury that his only purpose in so doing was in order that they might hear the testimony.
If a question is propounded to a witness which tends to elicit improper testimony, it is the duty of the opposite party to object to it and obtain a ruling on his objection. If improper testimony is given in response to a proper question the proper method of removing it from the consideration of the jury is a motion to strike it. If improper testimony is given in response to an improper question to which no objection is made, a motion to strike is the recognized mode of removing it, but in such a case the granting or refusing of the motion is in the sound discretion of the trial court and an appellate court will not disturb such ruling unless an abuse of discretion is shown.
It is the province of the trial judge to determine whether or not an alleged confession made by a defendant in a criminal prosecution was freely and voluntarily made, and, in considering such question, such judge must determine the facts even upon conflicting evidence, and the appellate court, when called upon to review his ruling upon such evidence, must accord to his finding the presumption that it is correct, and refuse to disturb it, unless error in such ruling is clearly made to appear.
In a prosecution for murder, when the indictment charges and the uncontradicted proofs establish that the deceased came to her death from a wound inflicted by a discharge from a shotgun no harmful error is committed in excluding the testimony of the defendant that the deceased, who was his wife and with whose murder he stood charged, had stated to him just previous to the time that her body was found that she had taken poison for the purpose of committing suicide, especially when the evidence further establishes that it was a practical impossibility for the deceased to have committed suicide by shooting herself.
An appellate court will refuse to consider an assignment of error which has no basis in the transcript of the record, as not being properly before it.
In a prosecution for murder, an instruction requested by the defendant that has no basis in the transcript of the record will be held by the appellate court to have been properly refused, especially when the trial judge has fully instructed the jury in his general charge upon the law of homicide in the different grades and what the burden was which rested upon the state.
The safer and better practice is to have the record in a criminal prosecution affirmatively show that the defendant was personally present at every step in or stage of the trial, but it will be held by an appellate court to be sufficient if it appears by necessary and reasonable implications from record entries that the defendant was present at all necessary 'stages of the trial.'
In a trial for murder, where it clearly appears from the transcript of the record that, on the application of the counsel for the defendant, the defendant then being present, the court directed a view by the jury of the second story of the county jail, that counsel for the defendant was present with the judge and jury during the view, during which it was discovered that the defendant was not present, whereupon the court ordered the jury to cease their view and immediately sent an officer for the defendant, and, when the officer returned with the defendant, the view was resumed and continued, that no testimony was taken during the absence of the defendant, that no objection was made to the proceedings, and that nothing which could have been harmful to the defendant transpired during his absence while such view was being taken, that the view affected no conflicts in the evidence, and that the evidence, without reference to the view, fully sustained the verdict, and no objection was made to the view proceedings until after the verdict, the judgment will not be reversed merely because the defendant was not present at the time when the jury began their view, but was not denied the privilege of being present.
A judgment of conviction will not be reversed on writ of error even if technical errors were committed in rulings on the admissibility of evidence or in charges given or refused or in other matters of procedure, where the evidence of guilt is clear and ample and no fundamental rights of the defendants were violated, and it appears from the whole record that such technical errors, if any, were not prejudicial to the defendants.
COUNSEL A. D. Penney, of Miami, Fred Fee, of Ft. Pierce, and M. K. Adcock, of Miami, for plaintiff in error.
T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
Charles B. Kersey was indicted for the crime of murder in the first degree, tried before a jury, convicted of the crime of murder in the second degree, and sentenced to confinement at hard labor in the state prison during the remainder of his natural life. Before taking up for consideration the errors which have been assigned and argued before us, we think it advisable to state that the evidence adduced establishes the fact that Edith Kersey, for causing whose death by shooting her with a shotgun the defendant was placed on...
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Thorp v. State, SC91663.
...may not testify in the form of opinions or inferences; it is the function of the jury to draw those inferences. Cf. Kersey v. State, 73 Fla. 832, 840, 74 So. 983, 986 (1917); see also Charles W. Ehrhardt, Florida Evidence § 701.1, at 538 (1999 ed.). An exception to this rule is found in sec......
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Williams v. State, 6586
...aforesaid. Cochran v. State, Fla.App.1960, 117 So.2d 544, 79 A.L.R.2d 638; Graham v. State, Fla.1956, 91 So.2d 662; Kersey v. State, 1917, 73 Fla. 832, 74 So. 983. Such inquiry as to admissibility must be conducted in the absence of the jury, and in determining whether the confession was vo......
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Linsley v. State
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