Kirby v. State

• Decision Date: 25 March 1902
• Citation: 44 Fla. 81,32 So. 836
• Parties: KIRBY v. STATE.
• Court: Florida Supreme Court

32 So. 836

44 Fla. 81

KIRBY v. STATE.

Florida Supreme Court

March 25, 1902

Error to circuit court, Columbia county; John F. White, Judge.

Johnson Kirby was convicted of Manslaughter, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Where a single general assignment of error is made to embrace refusals to give two or more requested instructions that state separate and distinct propositions of law, the settled rule here is that the appellate court will go no further in the consideration of such an assignment after finding that any one of the instructions so assigned was properly refused and such assignment will then be overruled.

2. The question as to whether a proposed confession was freely and voluntarily made is one for the court exclusively to decide and a requested charge that proposes to submit such question to the jury to determine is properly refused.

3. The following charge given to the jury: 'You are to determine the credence which shall be attached to the alleged confessions, and every part thereof, and it is your duty to give such confession a fair and unprejudiced consideration. The confession should be taken as a whole. You should give effect to such part as you believe to be true, and reject from your consideration all that you find sufficient reason to reject,'--held to state the law correctly.

4. Where a state witness testifies that he went to the scene of the homicide because of a remark made to him by another party, it is proper for him to state such fact, but it is not proper for him to repeat in evidence the substance of such remark that was the cause of his going, as it is hearsay.

5. A fact that is pertinent and relevant to the issue, and that tends to establish the commission of the crime charged, is not rendered inadmissible in evidence because it may have a tendency collaterally to prejudice the defendant with the jury.

6. The docket entries of the committing magistrate who conducted the preliminary examination of the accused, to the effect 'And the defendant was on this day given a hearing on said charge, and the court being satisfied that there is probable cause to hold the defendant, and believing the presumption of his guilt to be great, he holds the defendant to the circuit court without bail,' are wholly inadmissible as evidence on the ultimate trial of such defendant, under any circumstances or for any purpose; and their admission in evidence held to be reversible error.

7. The general rule to the effect that 'general objections to evidence proposed, without stating the precise ground of objection, are vague and nugatory, and are without weight before an appellate court,' is subject to the exception that if the evidence objected to is palpably prejudicial improper, and inadmissible for any purpose or under any circumstances, then a general objection thereto is sufficient.

COUNSEL T. B. Oliver and Boozer & Gillen, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

PER CURIAM.

This cause was referred by the court to its commissioners for investigation who reported that the judgment of the circuit court ought to be reversed, in which view the court concurs.

The plaintiff in error was indicted for murder in the first degree in the circuit court of Columbia county, and on his trial there in June, 1901, was convicted of manslaughter, and, to review the judgment, takes writ of error from this court.

The first assignment of error is the denial in the court below of the defendant's motion for new trial. The first six grounds of this motion are presented together, and question the sufficiency of the evidence to support the verdict. As there will be a reversal of the judgment below because of other errors hereinafter to be pointed out, it will be improper to discuss the sufficiency of the evidence for conviction. The seventh ground of the motion for new trial is as follows: 'Because the court erred in refusing to give the following charges, numbered 1, 2, 3, 4, 5, 7, and 8, respectively, as requested by the defendant, by and through his counsel, which are as follows.' Then follows at length in the motion a copy of the several refused instructions. This ground of the motion, treated as an assignment of error, must be held to be the grouping together in a single general assignment of refusals to give more than one requested instruction, and as such instructions announce separate and distinct propositions of law, the settled rule here is that the appellate court will go no further in the consideration of such an assignment after finding that any one of the instructions so assigned was properly refused. Shiver v. State, 41 Fla. 630, 27 So. 36; Eggart v. Same, 40 Fla. 527, 25 So. 144; McCoggle v. Same, 41 Fla. 525, 26 So. 734. Acting upon this rule, the court finds that the seventh requested instruction was erroneous because by its first clause it proposed to submit to the jury the question whether or not the confessions introduced in evidence were freely and voluntarily made. This was a question to be determined by the court before admitting evidence of the confessions, and not a question for the jury to determine under instructions from the court. Holland v. State, 39 Fla. 178, 22 So. 298, and cases cited therein. For the reason stated, the seventh requested instruction was properly refused.

The seventeenth assignment of error is as follows: 'The court erred in refusing to charge the jury in the several matters and things requested, and appearing of record,--charges 1, 2, 3, 4, 5, 6, and 7.' What has already been said in reference to the seventh ground of the motion for new trial applies alike to this assignment, and it must fail for the same reasons. The eighth, ninth, tenth, and eleventh grounds of the motion for new trial question severally the giving by the court of four several instructions as follows: 'You are to determine the credence which shall be attached to the alleged confession, and every part thereof, and it is your duty to give such confession a fair and unprejudicial consideration. The confession should be taken as a whole. You should give effect to such part as you believe to be true, and reject from your consideration all that you find sufficient reason to reject.' There was no error in this instruction. Marshall v. State, 32 Fla. 462, 14 So. 92; Gantling v. Same, 40 Fla. 237, 23 So. 857.

The next charge questioned is as follows: 'If you have, after having considered all the evidence, both as to facts and circumstances, entertain a reasonable doubt as to whether or not the deceased was shot by the defendant with a pistol at the time and place of the alleged homicide, then you should find the defendant not guilty.' There is no prejudicial error in this instruction, inasmuch as the indictment charged the shooting with a pistol; nor in the next one questioned, as follows: 'The law, in its humanity, presumes all persons charged with the commission of crime to be innocent, and this humane presumption continues until every material element that constitutes the crime is proven to the satisfaction of the jury trying such person beyond a reasonable doubt.' The court, after charging the law upon hypothesized cases of murder in the first and second degrees, respectively, followed it up, as a continuation of the same charge, with the following: 'But should you not so find, and from the evidence, beyond a reasonable doubt, that the defendant, at the time and place and by the means and in the manner set forth in the indictment, slew the deceased unlawfully in the heat of overwhelming passion, superinduced by sudden and sufficient provocation on the part of the deceased, to throw a reasonable and cautious man into a sudden and uncontrollable passion, and that the defendant then and there instantly fired upon and slew the deceased, then you may find the defendant guilty of manslaughter.' The only assault made here on this charge is that it deprives the defendant of his defense of justifiable homicide. The court had already charged fully on the law of justifiable homicide, and the questioned charge is qualified by requiring the killing to have been 'unlawful.' The charge as framed, however, is calculated to confuse and mislead, as there have been left out of it some material words necessary to make it intelligible to a jury. And inasmuch as there may be other objections to it that we are not now called upon to consider, we think it should be omitted upon another trial or entirely reconstructed.

The twelfth ground of the motion for new trial is for the alleged error of the court in charging the jury as follows: 'And should you further find from the evidence that on the morning of the homicide they fell out with each other in regard to language used by the deceased in regard to the mother of the accused; and should you further find from the evidence that the defendant was without fault, and that the deceased was then and there armed with a deadly weapon, or with the wooden mallet offered and shown in evidence, made an assault on the defendant before the defendant had attempted to do any wrong or act of violence to him; and from the evidence should further find that the deceased attempted to strike the defendant with said wooden mallet, and thereby designed to do the defendant great bodily harm, and that the defendant, as a reasonable man, believed the danger of such design being accomplished was then and there imminent and impending, and that he fired the fatal shot that killed the deceased, alone to prevent his own life from being taken, or alone to prevent great bodily injury being inflicted upon him by the deceased,--then you should find a verdict of not guilty on the ground of justifiable homicide. But to entitle the...