Lindberg v. State

• Decision Date: 08 November 1938
• Citation: 184 So. 662,134 Fla. 786
• Parties: LINDBERG et al. v. STATE.
• Court: Florida Supreme Court

184 So. 662

134 Fla. 786

LINDBERG et al. v. STATE.

Florida Supreme Court

November 8, 1938

Rehearing Denied Dec. 8, 1938.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

John Lindberg was convicted of murder in the first degree, and Martha Lindberg was convicted of murder in the second degree and they bring writ of error.

Affirmed.

TERRELL C.J., dissenting.

COUNSEL

Zewardski & Pierce and H. Blaine Peacock, all of Tampa, for plaintiffs in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

On trial under an indictment charging murder in the first degree John Lindberg was convicted of murder in the first degree and his wife, Martha Lindberg, was convicted of murder in the second degree, to which convictions writ of error was sued out.

Plaintiffs in error challenge the sufficiency of the evidence. They challenge the admission of a kodak picture of the deceased taken after the killing and before the body had been moved, and also the action of the trial court in refusing to require the State's Attorney to turn over to defendants' counsel the transcript of testimony taken on the investigation of the involved homicide. They also challenge the action of the trial court in refusing to give certain requested instructions to the jury when submitting the case for their consideration.

The evidence was amply sufficient to warrant the jury in reaching the conclusion that the Lindbergs had conspired together to kill the deceased; that Charlie Brown, the deceased, had some time prior to the killing lived in the home of the defendants; that deceased came to the Lindberg home on this occasion by prearrangement with Mrs. Lindberg; that he came and asked for money in a manner which indicated that he had a right to expect to get money; that he came to the open dining room door and asked for the money. That several people were present; that when those in the house saw Brown, the deceased, approaching, Mr. Lindberg took a shot gun and went out of sight into the kitchen. That when Brown asked Mrs. Lindberg for the money she told him that she had forty-five or fifty cents and laid some money in a purse down on the table; then Brown, without making any demonstration or threat and over no objection, took a step toward the table and then Mr. Lindberg stepped into the dining room from the kitchen and without a word of warning, or otherwise, shot the deceased; that the deceased turned and staggered out of the house a few feet and fell dead beside the fence. That immediately after the shooting Lindberg, while looking down on the dead body of deceased, repeatedly made the statement: 'You dirty bastard, I got you where I have been wanting you for two years' or, 'You dirty bastard you, I got you where I want you, I have been wanting you there for about two years and now I got you.'

There are some conflicts and contradictions, but a state of facts as above outlined is established by evidence which the jury was warranted in believing. The weight of the evidence shows that the killing was a premeditated homicide of which the defendants were jointly guilty. The deceased was not armed. There is evidence from which the jury could conclude that deceased was invited by Mrs. Lindberg to come to the home of defendants at the time he did come. He was not warned not to enter the house. There was substantial evidence which the jury was warranted in believing that the deceased made no threats either in words or action evincing any intention to harm either of the defendants.

The Third question presented by plaintiffs in error is:

'In a homicide case should the State be allowed to introduce in evidence a kodak photograph, taken by a deputy sheriff long after the shooting, which contains a picture of the dead man lying crumpled up in a gruesome position, when neither the picture nor the scene it depicts has any materiality to the issues in the case and does not serve to illustrate, explain or clarify any issue nor resolve any conflict in the evidence, and the only effect, if not purpose, of which photograph is to inflame and prejudice the minds of the jury against the defendants at the outset of the trial?'

We think the contention is without merit.

In Wharton's Criminal Evidence, Vol. 2, 11th Ed., page 1320, the author says:

'Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on whether it would be useful to enable the witness better to describe and the jury better to understand the testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. Thus, a photograph has been admitted of a child who had been garrotted and his hands and feet had been cut off to prevent identification.'

The photograph introduced in evidence in this case has been certified to this court. It shows the body of a man lying on the ground near a fence and a door leading from what appears to be a driveway into a house. We gather from the evidence that this is the door into which deceased stepped a moment before he was shot.

It may be said that the kodak picture was prejudicial to the defendant, and this may be true, just as any other evidence admitted against a defendant is prejudicial to him.

In the case of Dedge v. State, 68 Fla. 240, 67 So. 43, we said:

'There was no error in admitting in evidence photographs of the scene of the homicide. The physical changes that took place between the time of the killing and the time of the trial were trifling, and were accounted for, and, as the jury visited the premises, the admission of the photographs became as evidence well nigh negligible.'

The propriety of introducing photographs in criminal trials was discussed at some length in the case of Hall v. State, 78 Fla. 420, 83 So. 513, 8 A.L.R. 1234, and the introduction of photograph in that case was held to be without error. See, also, State v. Aeschbach, 107 N.J.L. 433, 153 A. 505.

The record shows that the photograph introduced in this case was taken a few hours after the homicide and before the body of deceased had been moved from the place where he fell and was properly admitted in evidence.

The next question presented is:

'Where the State Attorney, in cross examination of defendant and another witness, attempts to lay predicate for impeachment by asking questions taken from isolated portions of transcribed testimony taken by the State Attorney prior to trial, and said transcript is produced in court by the State Attorney and used in said cross examination, should not the trial court, upon appropriate motion of defendants' counsel at the conclusion of said cross-examination, require the State Attorney to tender the complete transcript to defense counsel for inspection?'

The record shows that the State's Attorney had conducted an investigation of this homicide and in doing this he had a stenographer to take and transcribe the statements of the witnesses. On cross examination of witnesses for the State in cases where the witnesses did not testify at the trial as they had testified, during the investigation, the State's Attorney, as a basis for impeachment, asked the witness under interrogation whether or not he had made a contradictory statement during the investigation and quoted from the stenographic transcript what purported to be the contradictory statement of the witness made during the investigation and where a witness denied having made such contradictory statement, the original statement might have been proved by the stenographer who took and transcribed the original statement.

It is not shown that the transcribed testimony referred to was in any manner a court record.

There was no attempt to introduce the transcribed statements as substantive evidence. They were simply used as memoranda to promote accuracy. So far as the record shows, the transcript involved was the private memoranda of the State's Attorney. It amounted to no more than the private memoranda made by counsel for either party on a pre-trial examination of witnesses who would likely be called to testify at the trial. It is the right of counsel to make or have made memoranda of the statements of those who will probably be witnesses at a trial and to use that memoranda both to refresh his memory and for the purpose of impeachment, if the memoranda should become useful for that purpose, although the memorandum itself is not admissible as substantive evidence against the accused. See State v. Rhoads, 81 Ohio St. 397, 91 N.E. 186, 27 L.R.A.,N.S., 558, 18 Ann.Cas. 415; see, also, Havenor v. State, 125 Wis. 104 N.W. 116, 4 Ann.Cas. 1052; People v. Fuski, 49 Cal.App. 4, 192 P. 552: Metzler et al. v. U.S., 9 Cir., 64 F.2d 203.

The plaintiffs in error appear to rely on the case of People v. Miller, 257 N.Y. 54, 177 N.E. 306. The case is not in point because there the opinion shows counsel for defendant...