Lawrence v. State
| Citation | 34 So. 87,45 Fla. 42 |
| Parties | LAWRENCE v. STATE. |
| Decision Date | 17 March 1903 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Walton County; Lucius J. Reeves, Judge.
Tom Lawrence was convicted of murder, and brings error. Affirmed.
Syllabus by the Court
1. Objection to an instruction of the court to the jury, based upon the manner of delivery of the instruction, and not upon its substance, cannot be considered when the record does not disclose the manner of its delivery, and it is described only in the brief of counsel.
2. The propriety of remarks of the court to the jury not excepted to in the court below will not be considered here.
3. Evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not admissible where the conditions attending the alleged occurrence and the experiment are not shown to be similar.
4. Evidence that the stepdaughter of a defendant charged with murder was shot by the deceased in the afternoon of the day he was killed is admissible as tending to show motive in the defendant.
5. An alleged error of the court below, appearing in the brief of counsel, but not presented by the assignments of error filed in the case, will not be considered.
6. The evidence is sufficient to support the verdict.
COUNSEL Daniel Campbell & Son, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was convicted of the crime of murder in the second degree, and sued out writ of error from this court.
His first assignment of error is based upon the action of the circuit judge in cautioning the jury that 'the jury are expected to stay awake during the progress of this trial and, if one of you should go to sleep while a witness is testifying, it would be a ground for a new trial, in the event of a conviction.' It is urged that, in delivering this instruction, the pause of the trial judge before the words 'in the event of a conviction' tended to produce the impression upon the jury that the judge thought the defendant guilty. The manner of the delivery of this caution is not reproduced to this court, nor does the record attempt to describe it. But even if the remark as made by the judge was improper, no exception was taken to it in the court below, and it cannot be considered here. Garner v State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232; Roten v. State, 31 Fla. 514, 12 So. 910; People v. Shelters, 99 Mich. 333, 58 N.W. 362; Vass v. Town of Waukesha, 90 Wis. 337, 63 N.W. 280.
The second and sixth assignments will be considered together. The first of these relates to the refusal of the trial court to admit evidence as to the dangerous character of the deceased. He was killed by a shot in the back while sitting with companions around a light at night. The testimony, therefore was not offered in aid of a plea of self-defense, but as tending to show that some third person may have been the assassin. The sixth assignment complained of the action of the court in excluding from the jury testimony that one Will Smith and the deceased, Jesse Johnson, had been paying attention to the same girl, and, a week before he was killed, Johnson said to a witness that 'Smith is trying to go between him and the girl, and that he was going to do something about it,' and that on the day before the shooting he said to the witness, "I got to do that thing;' that that fellow was trying to come between him and that girl.' This testimony, too, is offered for the purpose of showing that some one other than the defendant had a motive for killing Johnson. These very vague threats were uttered by the deceased. No action looking to their execution is shown nor were they communicated to Smith, and no evidence is offered tending to show that Smith did in fact commit the crime.
The question, to what extent one charged with a crime may defend by showing some third person to be the guilty party, has often been before the courts, and is discussed in the following cases: Banks v. State, 72 Ala. 522; Levision v. State, 54 Ala. 520; State v. Beaudet, 53 Conn. 536, 4 A. 237, 55 Am. Rep. 155; State v. Hawley, 63 Conn. 47, 27 A. 417; Commonwealth v. Abbott, 130 Mass. 472; State v. Davis, 77 N.C. 483; State v. Gee, 92 N.C. 756; State v. Lambert, 93 N.C. 618; Ex parte Gilstrap, 14 Tex.App. 240; Murphy v. State, 36 Tex. Cr. R. 24, 35 S.W. 174; Crookham v. State, 5 W. Va. 510. None of them authorizes an accused to defend by raising so vague a suspicion of guilt in another as is attempted here, and the court below committed no error in excluding such testimony.
One Mason, a state witness, had testified that he lived 120 yards from the defendant's house,...
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