Killingsworth v. State
| Citation | 90 Fla. 299,105 So. 834 |
| Parties | KILLINGSWORTH v. STATE. |
| Decision Date | 30 September 1925 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied Nov. 5, 1925.
Error to Criminal Court of Record, Hillsborough County; H. K Olliphant, Judge.
Charles C. Killingsworth was convicted of being an accessory before and after robbery, and he brings error.
Affirmed.
Syllabus by the Court
Principal and accessory held not disqualified to testify. One charged as principal in the commission of a crime is not disqualified for that reason to testify in the trial of another charged as accessory before or after the fact to such crime. Nor is one accessory, because of his participation in the crime disqualified from testifying in the trial of another accessory to the same crime.
Section 2706, Revised General Statutes 1920, modifies the common-law rule upon the subject of the competency of persons as witnesses who are jointly indicted and tried jointly.
Books of account held admissible as supplementary to best evidence. Books of account, after being submitted to the inspection of the trial court to determine whether they have been honestly and fairly kept, are admissible in evidence, if so determined by the court, not as the best evidence of which the subject is susceptible, but as supplementary thereto.
Objections that evidence is immaterial and irrelevant are too general. Objections to evidence offered upon the ground that it is immaterial and irrelevant are too general, and will not be considered, if the evidence was admissible for any purpose.
Evidence of identification by voice of one speaking over telephone admissible. Evidence of the identification by voice of one speaking over a telephone is admissible when given by one party to the conversation who was at the other end of the line.
Assignments of error merely stated in brief with statement of court's ruling treated as abandoned. Assignments of error which are merely stated in the brief with a further statement of the court's ruling are not considered to be argued, and will be treated as abandoned, unless the error of which complaint is made is so glaring as to need no demonstration.
Objection of party to testimony, who brings out such evidence on cross-examination, treated as abandoned. Where objection is made to certain testimony of a witness offered on direct examination, and the complaining party afterwards, upon cross-examination of such witness, causes such evidence to be repeated, and develops it by bringing out further details of the transaction, the original objection is considered as abandoned; not because the evidence upon direct examination was repeated, but because of the new matter relating to the same transaction brought out in cross.
No objection can be made to unfavorable evidence brought out by questioning of adverse witness. No objection can be validly made to evidence which is brought out by the questioning of an adversary witness by the complaining party because such evidence turns out to be unfavorable to such party.
Wide latitude given in cross-examination. A wide latitude is given in the cross-examination of a witness to ascertain his opportunities for observation, his attention, his interest and truthfulness.
Before judgment of conviction may be entered against accessory before fact, judgment must be entered against principal. One charged as an accessory before the fact may be convicted by a jury before the principal has been sentenced, but before the judgment of conviction may be entered against the accessory judgment of conviction must first be entered against the principal.
One may be convicted as accessory before fact without showing he also had intention that person robbed should be killed if he resisted. One charged as accessory before the fact to the commission of robbery, alleged to have been committed by the person charged as principal armed with a pistol and with intent to kill the person robbed if he should resist, may be convicted as accessory before the fact without showing that he likewise had an intention that the person to be robbed should be killed if he resisted.
Liability of accessory before fact stated. An accessory before the fact is liable for any criminal act which, in the ordinary course of events, was the natural or probable consequence of the crime he advised or commanded, although such consequence may not have been intended by him; but for crimes which are the outcome of a total or substantial departure from his directions he is not liable.
Refusal of charges already given not error. It is not error for the court to refuse to read charges already given substantially.
When motions for new trial on ground of newly discovered evidence should not be granted stated. Motions for new trials upon the ground of newly discovered evidence should not be granted where the evidence so discovered goes merely to impeach witnesses who testified at the trial, and where there is no showing that the defendant did not know of the existence of the evidence which he offers to produce at another trial, and where there is no showing of diligence in discovering the evidence, and where it is in part cumulative, and does not go to the merits of the case.
Evidence held to sustain conviction for being accessory to robbery. Evidence examined, and found sufficient to support the verdict.
Requisite intent in robbery. Under Rev. Gen. St. 1920, §§ 5055, 5056, requisite criminal intent in robbery is felonious taking from another of his money or other property, and use of deadly weapons or of force or putting victim in fear is natural and probable consequence of offense of robbery.
Sparkman & Knight and Herbert S. Phillips, all of Tampa, for plaintiff in error.
Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.
The plaintiff in error was tried and convicted upon an information charging in two counts James T. Albury, Jr., and George B. White, alias Jack White, with robery by feloniously taking from Alonzo C. Clewis about $21,000 alleged to have been the property of the Exchange National Bank of Tampa, a corporation, and Charles C. Killingsworth, Roscoe D. Hogue, Edith Conway, and F. M. Williams as accessories before and after the fact.
The money, consisting of currency and silver coin, was delivered into the hands of Mr. Clewis in the West Tampa Bank, of which he was president, by officers and employees of that bank, to be carried to the Exchange National Bank of Tampa, as had been done on other occasions. Mr. Clewis was, at that time, chairman of the board of directors of that bank, which is a national banking corporation. The amount of money delivered into Mr. Clewis' possession was $24,500. It was delivered to him as messenger of the Exchange National Bank. No receipt was taken at the time for the money by the bank of West Tampa, but an entry was immediately made upon the books of that bank charging the sum to the Exchange National Bank.
The following day the bank of West Tampa received through the mail an acknowledgment of the receipt from the bank of West Tampa of the sum of $24,000.
Upon receiving the money Mr. Clewis had the same placed in his automobile, and drove away, intending to take the money to the Exchange National Bank, for which, as the latter's representative, he had obtained it from the bank of West Tampa. As he proceeded southward on Francis avenue he was overtaken by two men in an automobile who drove alongside Mr. Clewis' car, forcing it to the curb, and wrecking the car. Under threat of violence, with drawn pistols, they forced Mr. Clewis to get out of his car, and then they transferred all except $500 of the money from the Clewis car to their own automobile, and rode away. Mr. Clewis returned to the bank of West Tampa the package containing $500, which the robbers left in his automobile, and requested that the Exchange National Bank be credited with that amount.
Mr. Clewis, who testified for the state, identified the two men, James T. Albury, Jr., and Jack White, as the two men who committed the robbery.
The offense was alleged to have been committed on April 23, 1924. The defendant, Killingsworth, plaintiff in error here, pleaded not guilty on August 11th, and was put upon trial September 8, 1924. He was convicted on both counts, and sentenced to imprisonment in the state prison.
He seeks a reversal of the judgment on writ of error.
There are 26 assignments of error. Two of them rest upon orders denying motions for a new trial and arrest of judgment. The first contains 35 grounds, and has affidavits attached thereto in support of it. The other contains nine grounds.
It is contended that the evidence was insufficient to support the verdict. The testimony in the case is distributed through 296 pages of typewritten matter. In so far as it relates to the defendant's participation in the crime, it consists, in behalf of the state, of the testimony of James T. Albury, Jr., named in the information as one of the principals, Roscoe D. Hogue, named as accessory, and J. C. Beard, who at the time of the alleged crime was connected with the police force of the city of Tampa--all of whom testified to the defendant's participation in the crime as accessory before and after the fact, and other witnesses whose testimony, as to circumstances transpiring after the commission of the offense, was deemed to be corroborative.
The evidence for the defense consisted of the defendant's testimony in denial, corroborated by several other witnesses some of whom testified to the unfavorable general reputation for truth and veracity of some of the witnesses for the state; while others testified as to the defendant's presence in other places than those in which the state...
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... ... 597, and cases cited; Wigmore on Evidence, §§ ... 149, 660, 1130, and 1977; 1 Greenleaf on Evidence, § 440; ... Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am ... St. Rep. 97; Mack v. State, 54 Fla. 55, 44 So. 706, ... 13 L. R. A. (N. S.) 373, 14 Ann. Cas. 78; Killingsworth ... v. State, 90 Fla. 299, 105 So. 834; Pennington v ... State (Fla.) 107 So. 331; Alford v. State, 47 ... Fla. 1, 36 So. 436; Roberson v. State, 40 Fla. 509, ... 24 So. 474; Jordan v. State, 50 Fla. 94, 39 So. 155 ... In Mack ... Case, supra, the prosecutrix was allowed ... ...
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