Mann v. State
| Decision Date | 12 November 1887 |
| Citation | 3 So. 207,23 Fla. 610 |
| Parties | MANN v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Leon county; DAVID S. WALKER, Judge.
Syllabus by the Court
A juror, tendered and accepted, but not sworn, may be challenged as well by the state as by the prisoner.
A question to a witness is not objectionable because general in its terms, the court having authority to restrain or correct the witness when he goes beyond the bounds of legal evidence.
It is not error to allow a question in respect to supervision of a prisoner's duties, which does not necessarily imply imputation upon his character.
The opinion of a witness, except in expert testimony, is not legitimate evidence as to any matter that may be produced before the jury by a witness, it being the province of the jury to form their own opinion on facts of common experience uninfluenced by the opinion of any witness on those facts especially where such opinion is sought on facts given in the testimony of another witness. [1]
A trial on indictment for murder, conviction, and recommendation by the jury to mercy, and on appeal a new trial ordered, nol pros. entered, and a new indictment for the same offense. Conviction under the new indictment, without recommendation to mercy, and motion in arrest of judgment, on the ground that the former verdict was acquittal of murder in the first degree, and the prisoner could not be again tried for that offense. Held, (1) that the question, not having been presented in the pleadings or evidence, was not properly before the court, but (2) that such state of facts did not bring the case within the rule which prohibits a trial for a higher grade of offense than that found on conviction in a former trial.
COUNSEL John S. Beard, for Henry Mann, plaintiff in error.
The Attorney General, for the State.
At the fall term of the circuit court for Leon county, in the year 1886, Henry Mann was indicted for the murder of Edmond Dubois, and on trial was convicted and sentenced to be hung. Motions for a new trial and in arrest of judgment were denied. The case comes here for review, the bill of exceptions setting forth the matters on which are founded the errors we are asked to correct.
The first error assigned is: 'In allowing the state to challenge Samuel Hightower, the seventh juror, who had been tendered by the state and accepted by the defense.' We think, in regard to this, the court did not err in allowing the state to challenge a juror after he had been tendered and accepted, but before being sworn. It has been held in this state that 'it was the right of the prisoner to retract his acceptance and object to a juror at any time before he is sworn in chief.' O'Connor v State, 9 Fla. 216. There are numerous authorities of other states to sustain this ruling, and we see no reason to change it. Is there any reason why the state should not be granted the same privilege? The statute gives her five peremptory challenges, and the prisoner twenty, and there is nothing in it to make a distinction between them as to the time of exercising the right, by which the prisoner will be permitted to challenge a jury before being sworn, while the state will not. The authorities place them on the same footing. Wharton, in his Criminal Pleading & Practice, § 672, says: 'The challenge, either by the prosecution or defense, must be before the oath is commenced, down to which period the right exists.' In Beauchamp v. State, 6 Blackf. 299, the court held that after three jurors had been accepted by the prisoner, it was not error to allow the state to challenge one of the three, saying that 'either party may challenge at any time between the appearance and the swearing of the jury.' The only case we find seeming to conflict with this rule is Horbach v State, 43 Tex. 242, in which it was held to be error to permit the district attorney to challenge jurors after the state had passed upon them. But the decision in that case was founded on a statute of the state, and would have been equally appli able to challenges by the prisoner, the court saying: 'We know of no law, or established practice under the law, which sanctions the peremptory challenge of a juror by either party when thus placed on the jury,' showing that there was to be no distinction in the right of challenge, within the number allowed to each, between the state and the prisoner. As our state holds the prisoner's right of challenge open until the jury is sworn, the same right should be accorded to the state.
The second error assigned is: 'In overruling defendant's objection to following question to Emile Dubois: 'Please state to the jury what you know of the circumstances attending the death of your son, as to the time and place and circumstances of the incident.” This rests upon fault in the general terms of the question objected to. It is not an uncommon thing in practice to put such questions; and when put to an intelligent witness, his statement would be likely to save the time of the court and facilitate the dispatch of the case, while any defects in it, as evidence in the view of either side, may be supplied by answers to subsequent specific questions. The only objection we see to such a mode of eliciting evidence is that the witness, in ignorance of rules of law governing testimony, may make statements obnoxious to those rules; but this is just as often done in replying to more direct questions, and in either case counsel, exercising due vigilance, can have such statements intercepted or excluded by proper objection. If the witness should prove impracticable, either from ignorance or perverseness, it would be the duty of the court to require his examination to be conducted by questions directing his attention more particularly towards the facts in controversy. The court did not err in allowing the question.
The next error is: 'In overruling the defendant's objection to the following question to Emile Dubois: 'In the ordinary discharge of his duties in feeding the mules, was it customary for Henry Mann to be allowed to go into the crib alone?” To understand this, and the two succeeding questions objected to, it is necessary to premise that the evidence against the prisoner was entirely circumstantial. The deceased was found in the crib on the premises of his father, hanging from a joist, with a rope around his neck, and dead. No witness saw how this happened. The state undertakes to show that the prisoner did the hanging; while the theory of the defense is that the deceased, who was about fifteen years old, did it accidentally, if not intentionally. The prisoner was employed as a laborer and servant by the father of deceased, and lived some 300 yards from the father's dwelling-house. The crib was 30 yards from this house. It was about 5 o'clock in the afternoon when the boy was found hung, the last seen of him by his parents being about two hours before. The prisoner was seen near the house about 1 o'clock previously, with a rope in his hand, with which he had been whipping a dog; but was not seen about the house after that, till sent for to go for a doctor. There were two ropes on the premises belonging to plow gear. It was prisoner's business to feed the mules, and hence the foregoing question. We think the question was not an improper one. It did not necessarily imply that the object of attending the prisoner to the crib was to guard against his stealing or committing some other offense, and therefore could not in itself be considered an attack upon his character, of a sort to prejudice the jury. It would have been objectionable if it could be so considered.
The next error is: 'In overruling defendant's objection to following question to R. C. Long: 'Supposing there was a rope, as described by Mr. Dubois in his testimony yesterday, across that beam at the point indicated, the bottom of the loop extending ten inches below the beam, could a boy of the height of Edmond Dubois, as testified to yesterday, stand on the barrel and place his head in the loop?” This is objected to as being leading, and also as improperly seeking the opinion of the witness. The question tends to be a leading one, in that it rather suggests the answer to be made, but we pass this to consider the more important and serious objection. An opinion, based on a state of facts described by another witness, is asked. This is admissible in cases where the opinion sought is that of an expert, because he has special knowledge of the subject-matter of inquiry, derived from his studies and observation in his profession or occupation, which is not to be had within the ordinary observation and experience of men. But further than this, such a question is not permitted. It is only in exceptional cases that a witness, who himself testifies...
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