Kirkland v. State
| Decision Date | 21 December 1915 |
| Citation | 70 So. 592,70 Fla. 584 |
| Parties | KIRKLAND v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; D. J. Jones, Judge.
Doug Kirkland was convicted of manslaughter, and brings error. Affirmed.
Syllabus by the Court
An objection made to an entire statement of a witness, a part of which statement is admissible, is properly overruled.
An objection to evidence will not be considered where the record shows no exception to the court's ruling.
Motions for new trials in criminal cases are required by section 1608 of the General Statutes of 1906 to be made within four days after the verdict shall have been rendered and during the same term.
In extraordinary cases to be judged of by the trial court in its discretion, a motion for a new trial may be amended after the expiration of the four days after rendition of the verdict and before hearing on the original motion to correct some flagrant error in the trial, and the refusal of a trial court to permit an amendment of a motion for a new trial under such circumstances will not be reversed unless the reocrd discloses a palpable abuse of discretion on the part of the trial judge.
COUNSEL Amos E. Lewis and Will H. Price, of Marianna for plaintiff in error.
T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
The plaintiff in error, Doug Kirkland, was indicted for the murder of Mary Jane Sutton. Upon the trial he was convicted of manslaughter and sentenced to five years' imprisonment at hard labor in the state prison. Being dissatisfied with the judgment, he comes here upon writ of error.
Some time in November, 1913, about 7 or 8 o'clock one night Doug Kirkland went to the Sutton home armed with a shotgun. He entered the house through the back entrance, advanced to the door of the room in which Mrs. Sutton was standing, and shot her. From the wounds inflicted Mrs. Sutton died the next morning. At the time this transaction occurred, Andrew Sutton, the husband, and one of the boys, Booker, were in the 'crib,' a small house near the dwelling, to draw some syrup. The two girls, Ola and Dinah, had just gone out of the house when Kirkland entered, and were both standing near the rear entrance looking into the house at Kirkland. Dave Sutton, a son, was in the field near the house 'possum' hunting. George Sutton, another one of the boys, was in the yard. The last named had a gun. Dave had called to his brothers to bring an axe and some fire, that he had 'treed.' They had gone with these essentials at the call of their brother, and George picking up the gun was on his way also. About this time Kirkland entered the house, shot the mother of this household, and left the house by the front door. He had not proceeded very far before he met George, who, hearing the shot in the house, turned back, and, seeing Kirkland leaving the house, shot him, wounding him in the head.
The first and second assignments of error rest upon the court's refusal to strike out, upon the defendant's motion, certain statements of a witness named Annie Bryant, who testified to certain dying declarations of the deceased. The bill of exceptions shows the following transaction: Annie Bryant, testifying on redirect examination:
The objection which was raised to the testimony of the witness as preserved by counsel's exception was that the 'testimony was hearsay and not admissible.' That is to say, the testimony was not admissible because it was hearsay. All testimony as to dying declarations is hearsay testimony and is admitted as an exception to the rule excluding that kind of evidence. So the objection here presented is: That the declaration of the deceased that 'she didn't see why he shot her, that she hadn't been in speaking distance of him for more than a year,' does not come within the exception. Even if an opinion of the declarant was not admissible, it could not be maintained that the words, 'hadn't been in speaking distance of him for more than a year,' were amenable to that criticism. Those words constituted a statement of fact most material in character. The defense was self-defense. The words were clearly admissible, as the trial judge said, to show that the deceased was not the aggressor. The objection to the entire statement or declaration, part of which was admissible, was properly overruled. See Anthony v. State, 44 Fla. 1, 32 So. 818; Richard v. State, 42 Fla. 528, 29 So. 413; Freeman v. State, 50 Fla. 38, 39 So. 785; Higginbotham v. State, 42 Fla. 573, 29 So. 410, 89 Am. St. Rep. 237; Johnson v. Rhodes, 62 Fla. 220, 56 So. 439. The first objection seemed to have been merged into the second, and, upon the entire transaction as quoted above from the bill of exceptions, the two assignments are based. The record does not show that the first objection was followed by an exception to the court's ruling. It seemed to be the purpose of counsel to merge the first into the second objection. The first objection should not be considered because, standing alone, it shows no exception to the court's ruling. Upchurch v. Mizell, 50 Fla. 456, 40 So. 29; Coker v. Hayes, 16 Fla. 368; Shepherd v. State, 36 Fla. 374, 18 So. 773; Gainesville & G. R. Co. v. Peck, 55 Fla. 402, 46 So. 1019; Maloy v. State, 52 Fla. 101, 41 So. 791. Nor do we regard the words of the declarant that she 'didn't see why he shot her,' as an expression of opinion. It was equivalent to a statement that she had done nothing to provoke the defendant's assault, a declaration of absence of any knowledge on her part as to the cause of or reason for the assault.
The third assignment of error is abandoned.
After the expiration of four days from the trial of the cause, the defendant by his counsel, before argument upon the motion for a new trial, moved the court for permission to amend the motion for a new trial by adding the following grounds:
'(6) That the defendant's counsel, since the trial of the above styled and entitled cause, have come into possession of facts, which, in connection with the testimony of the defendant at the trial, have convinced them that the defendant is insane or demented, and was so insane at the time of the commission of the alleged offense and at the time of the trial, and that he was not, by reason of such insanity, responsible in law for the alleged homicide; that these facts were not known to defendant's counsel at the time of trial, nor prior thereto, nor could they, by reasonable diligence, have ascertained these facts; that while said facts were well known to defendant's relatives, without knowing the consequences, said relatives studiously concealed these facts, for which the defendant was in no wise responsible; nor was he, by reason of his insane and demented condition, in the condition to inform his attorneys, who took it for granted that, because of a want of motive or cause for such alleged offense, the defendant was drunk, all of which facts defendant, by his attorney, will show, if permitted by the court, are true.'
The motion for permission to amend the motion for a new trial was denied, and the defendant excepted. This ruling is made the basis of the fourth assignment of error. The question is presented whether, in a criminal case, the defendant against whom a verdict has been rendered and who has made a motion for a new trial may, before the motion is heard, but after four days have elapsed since the verdict was rendered, amend his motion for a new trial by adding new grounds. In this case there is nothing in the record to show that either the defendant or his counsel were prevented from making the motion within the proper time, nor that even by the exercise of diligence counsel could not have obtained the information which is made the basis of the motion to amend within time to incorporate it in the motion for a new trial. The proposed amendment, recited in the motion for permission to amend, states that there were facts, not reciting them, which convinced defendant's counsel, when considered in connection with other facts adduced in evidence at the trial, that defendant was insane or demented and not 'responsible in law for the alleged homicide.' Also, that these facts were unknown to counsel at the time of the trial, nor could they be reasonable diligence have ascertained them. But a motion is...
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