Mack v. State

CourtUnited States State Supreme Court of Florida
Writing for the CourtTAYLOR, J.
PartiesMACK v. STATE.
Decision Date08 July 1907

44 So. 706

54 Fla. 55

MACK
v.
STATE.

Florida Supreme Court, Division B.

July 8, 1907


Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

Dock Mack, alias Bill Mack, was convicted of rape, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A witness may be permitted to identify an accused solely from having heard his voice, and such testimony is admissible and legitimate to establish identity. Such evidence is not the statement of mere matter of opinion, but is the statement of a conclusion reached directly and primarily from an operation of the sense of hearing. Neither is such evidence to be considered as circumstantial, but is direct and positive proof of a fact, and its probative value is a question for the jury.

COUNSEL [54 Fla. 56] John E. Hartridge, for plaintiff in error.

W. H. Ellis, Atty. Gen., and A. G. Hartridge State's Atty., for the State.

OPINION [44 So. 707]

TAYLOR, J.

At the fall term, 1906, of the circuit court in and for Duval county, the plaintiff in error a negro, hereinafter called the defendant, was indicted for the crime of rape; his victim being a white girl. In March, 1907, he was tried, convicted, and sentenced to die, and comes here for review of such judgment by writ of error returnable to the present term. The only error assigned or presented here is that the court below erred in denying the defendant's motion for new trial made upon the grounds that the verdict was not supported by the evidence, that the evidence was not sufficient to support the verdict, and that the verdict was in violation of the principles of law involved in the case.

The material facts proved by the state were substantially as follows: Miss B., the victim of the crime, an unmarried white woman 22 years of age, had for about 11 years resided with her mother on the outer edge of the suburbs of the city of Jacksonville in a dwelling located on what is called 'Enterprise street,' in a sparsely settled neighborhood. An electric street car line runs from the city of Jacksonville along said Enterprise street, terminating at its intersection with what is called 'Myrtle avenue,' that crosses said Enterprise street practically at right angles. From this terminus of the street car line westwardly to the dwelling of Miss B. is about 5,136 feet along said Enterprise street, a few feet less than a mile. Said Enterprise street runs out towards the west from the city of Jacksonville. At a distance of about 3,000 feet west from the said terminus of the said street car [54 Fla. 57] line, the roadbed and tracks of the Atlantic Coast Line Railway Company cross said Enterprise street approximately at right angles. On the east side of, and within a short distance of, the lastmentioned railway tracks, and situated on the north side of said Enterprise street, is the house and home of the defendant, where he had resided with his parents for several years prior to the crime. The defendant's parents resided here in a house standing on the front of their lot abutting on said Enterprise street, and the defendant and his brother occupied and slept in a small house or room located a few feet in the rear of their parents' house, but in the same inclosure or yard. From the said railway tracks at their crossing of said Enterprise street, and, practically, from the home of defendant to the point westwardly on Enterprise street where Miss B. was assaulted, is about 1,815 feet. For more than a year prior to the crime, Miss B. had employment with a business firm in the city of Jacksonville, and was for all of that time in the daily habit of going into the city in the early morning from her home and returning from the city to her home in the evening, generally leaving the city from 6 to half past 6 o'clock p. m., and generally rode on the street car to its terminus at said Myrtle avenue, from which point she generally walked to her home along Enterprise street, passing in close proximity to the defendant's place of abode. On the evening of the crime, Miss B. took the street car in the city about five minutes before 7 o'clock p. m., and, according to the proven street car schedule, arrived at the street car terminus at Myrtle avenue about 7 or 10 minutes past 7 o'clock p. m. From there, as was her daily habit, she walked along Enterprise street towards her home, passing the defendant's home on her way. The night was dark, with no lights upon said street. When she got to a point on Enterprise street about 1,815 [54 Fla. 58] feet westwardly from the home of the defendant and within about 400 feet of her own home, and within about 132 feet of the house of a Mrs. Wood, that was the nearest habitation to her outside of her own home, she was seized from behind by an unknown colored man, who exclaimed on seizing her: 'I have got you now.' The man choked her, and she offered him her pocketbook, to which he replied: 'I don't want your money.' She begged him to turn her loose, to which he replied: 'Shut up.' Then he continued to choke her, kicked her in the back, and beat her with his fist about the head and in the sides, and threw her, face downwards, on the ground, upon which she lost consciousness. When she regained consciousness, she found that she had been dragged from the point of first attack to a point 165 feet north of and at right angles to said Enterprise street, among some pinesapling trees, and when she regained consciousness she found herself lying partially on her side, with her clothing pulled up above her waist, with her mouth, nose, and eyes filled with sand, and realized that her private parts had been penetrated. She did not at any time during the encounter see the man who assailed her, as he kept behind her during the entire time while she was conscious; but she was positive that it was a negro man. She was so weak she had to crawl back to the street, then walked to the house of Mrs. Wood, and told her what had happened, was taken from there to...

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30 practice notes
  • State v. McGee, No. 33947.
    • United States
    • United States State Supreme Court of Missouri
    • 25 Abril 1935
    ...evidence was clearly admissible. [State v. Bell (Mo.), 300 S.W. 504, 505(1); State v. Hall (Mo.), 7 S.W. (2d) 1001, 1004(2); Mack v. State, 54 Fla. 55, 44 So. 706, 14 Ann. Cas. 78, 13 L.R.A. (N.S.) 373, and note; State v. Vanella, 40 Mont. 326, 106 Pac. 364, 20 Ann. Cas. 398, 401(4), and no......
  • Henderson v. State
    • United States
    • United States State Supreme Court of Florida
    • 1 Agosto 1927
    ...§§ 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. ......
  • State v. Carcerano
    • United States
    • Supreme Court of Oregon
    • 4 Abril 1964
    ...and that on the same day that the crime was committed, and then heard him speak only a few words.' 8 R.C.L. 184, § 176. See Mack v. State, 54 Fla. 55, 44 So. 706, 13 L.R.A.,N.S., and note 373. * * We are aware of no reason for believing that a participant in a crime cannot be identified by ......
  • Taylor v. State, 4 Div. 847.
    • United States
    • Alabama Court of Appeals
    • 19 Diciembre 1944
    ...Way v. State, 155 Ala. 52, 46 So. 273; 20 Am.Jur., Sec. 351, p. 326; Penington et al. v. State, 91 Fla. 446, 107 So. 331; Mack v. State, 54 Fla. 55, 44 So. 706, 13 L.R.A.,N.S., 373, 14 Ann.Cas. 78; State v. Vanella, 40 Mont. 326, 106 P. 364, 20 Ann.Cas. 398; Froding et al. v. State, 125 Neb......
  • Request a trial to view additional results
30 cases
  • State v. McGee, No. 33947.
    • United States
    • United States State Supreme Court of Missouri
    • 25 Abril 1935
    ...evidence was clearly admissible. [State v. Bell (Mo.), 300 S.W. 504, 505(1); State v. Hall (Mo.), 7 S.W. (2d) 1001, 1004(2); Mack v. State, 54 Fla. 55, 44 So. 706, 14 Ann. Cas. 78, 13 L.R.A. (N.S.) 373, and note; State v. Vanella, 40 Mont. 326, 106 Pac. 364, 20 Ann. Cas. 398, 401(4), and no......
  • Henderson v. State
    • United States
    • United States State Supreme Court of Florida
    • 1 Agosto 1927
    ...§§ 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. ......
  • State v. Carcerano
    • United States
    • Supreme Court of Oregon
    • 4 Abril 1964
    ...and that on the same day that the crime was committed, and then heard him speak only a few words.' 8 R.C.L. 184, § 176. See Mack v. State, 54 Fla. 55, 44 So. 706, 13 L.R.A.,N.S., and note 373. * * We are aware of no reason for believing that a participant in a crime cannot be identified by ......
  • Taylor v. State, 4 Div. 847.
    • United States
    • Alabama Court of Appeals
    • 19 Diciembre 1944
    ...Way v. State, 155 Ala. 52, 46 So. 273; 20 Am.Jur., Sec. 351, p. 326; Penington et al. v. State, 91 Fla. 446, 107 So. 331; Mack v. State, 54 Fla. 55, 44 So. 706, 13 L.R.A.,N.S., 373, 14 Ann.Cas. 78; State v. Vanella, 40 Mont. 326, 106 P. 364, 20 Ann.Cas. 398; Froding et al. v. State, 125 Neb......
  • Request a trial to view additional results

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