Martin v. State

• Decision Date: 07 January 1924
• Citation: 98 So. 827,86 Fla. 616
• Parties: MARTIN v. STATE.
• Court: Florida Supreme Court

98 So. 827

86 Fla. 616

MARTIN v. STATE.

Florida Supreme Court

January 7, 1924

Error to Circuit Court, Walton County; A. G. Campbell, Judge.

J. A Martin, alias Jake Martin, was convicted of murder, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Accused witness in own behalf may be cross-examined as to prior conviction of criminal offense; denial by accused of former conviction may be contradicted by record thereof; question as to nature of former conviction admitted by accused inadmissible to show it was same character with trial offense. When a defendant in a criminal prosecution testifies as a witness in his own behalf, the state has the right on cross-examination to interrogate him as to whether he has previously been convicted of a criminal offense. He may be contradicted by the record of his conviction, should he deny conviction; but, if he answers in the affirmative, it is not permissible to question him as to the nature or character of the crime of which he was convicted, merely to show that it was of the same character as the one for which he is then being tried.

Evidence of similar offenses inadmissible unless proof of one tends to prove commission of other. When identity is uncertain or motive doubtful, evidence of conviction of similar offenses is not admissible unless such relation exists between them that proof of one tends to prove the commission of the other.

Exclusion of evidence to impeach own witness, where testimony not adverse or party surprised, held not erroneous. It is not error for the trial court to exclude evidence offered to impeach a witness called by the party seeking to impeach him when his evidence is not adverse, nor the witness unwilling and his testimony is not a surprise to the party calling him.

Refusal of correct requested instructions covered by given instructions held not error. It is not error to decline to give an instruction which, although it contains sound propositions of law, and is applicable to the evidence, has been fully covered by other instructions already given by the court.

Evidence held to sustain conviction of murder in first degree. Evidence examined and found sufficient to sustain a verdict of murder in the first degree.

COUNSEL

D. Stuart Gillis, of De Funiak Springs, for plaintiff in error.

Rivers, Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

The plaintiff in error was indicted in the circuit court for Walton county and convicted of the murder of Henry Dannelly. The jury recommended the defendant to mercy, and he seeks to reverse the judgment entered on such verdict.

On Sunday, November 26, 1922, a party, consisting of six persons, got in an automobile and drove toward the home of one of the occupants of the car. The deceased and a woman sat on the front seat with the driver. The defendant and two others were riding on the back seat. Several members of the party, including the deceased and the defendant, had been 'drinking.' As they proceeded on the way the defendant used profane language several times, and Dannelly, the deceased, remonstrated with him and asked him not to swear as there was a lady in the car. Arriving at the home of the defendant, those on the back seat got out of the car, and Martin, with an oath, invited all of them in. Two or three replied that they could not go in the house. Dannelly drew a pistol and pointing it at Martin told him not to draw his pistol. Martin walked away; Dannelly put his pistol down; and Martin, coming around to the left side of the car in front, drew a pistol and presenting it at Dannelly, across the steering wheel, fired twice. The first shot entered the head of Dannelly, inflicting a would from which he died soon afterward.

The defendant testified in his own behalf. While he was on the witness stand, the state attorney asked him if he had ever been convicted of a criminal offense, to which the witness replied in the affirmative. The state attorney then asked, 'For what?' meaning presumably to require the defendant to name the criminal offense for which he had previously been convicted. His counsel objected to the question, but the objection was overruled, and the defendant was required to answer the question, stating that he had been convicted of manslaughter.

Under section 2706, Revised General Statutes, a 'proposed witness' may be questioned as to his conviction of crime, and if he denies such conviction the record of his conviction may be produced to establish the fact. This is allowable as affecting the credibility of the proposed witness. Prior to 1901 (Acts 1901, c. 4966) persons who had been convicted of certain crimes were not competent witnesses. After the passage of that act no person was disqualified to testify as a witness by reason of having been convicted of any crime except perjury; but conviction of crime could be shown to affect the credibility of the proposed witness.

In the case of Washington v. State, 98 So. 603, decided at this term of the court, we said that it was unnecessary to press the inquiry upon the defendant, who had taken the stand in his own behalf, to the point where he is required to disclose the character of the offense for which he was formerly convicted. In that case we held the question to be harmless, however, because there was neither doubt as to the slayer nor motive for the act which the admission of former conviction of a certain crime might tend to clear away. So in this case, while the question was unnecessary, it was not necessarily harmful, even if it was technically erroneous. This court has, since the passage of chapter 4966, Acts 1901, seemingly approved a question directed to the defendant as a witness which sought to elicit the information that he had been previously convicted of a crime of the same character as the one for which he was then on trial. See Herndon v. State, 72 Fla. 108, 72 So. 833. But that point was not the one under consideration. The defendant in that case was tried for perjury for having falsely answered a question, during his trial for larceny, as to his conviction in another state of the crime of larceny.

The statute of 1901, above referred to, merely removed the common-law restrictions upon a witness' competency so far as the conviction of crime rendered him incompetent, and recognized the generally accepted truth that one who has been convicted of crime is not however entitled to the same credit as one without a criminal record. Under the old statute (section 1096, Revised Statutes, 1892), manslaughter was not one of the crimes which disqualified one who had been convicted of such offense from becoming a witness. And in the absence of section 2706, Revised General Statutes, or some similar provision, it would be doubtful if a witness could be questioned as to his conviction of such an offense merely to affect his credibility. But the act of 1901, carried into the Revised General Statutes as section 2706, almost completely removed the restrictions imposed by the prior act, both as to competency and credibility as affected by former conviction of crime.

Therefore, it is not a question of what crime a witness may have committed before, and for which he had been convicted, but whether he had ever been convicted of any crime. If he has a criminal record, the theory of the statute is that it should affect his credibility although it does not affect his competency unless the crime was perjury.

In a prosecution for murder, therefore, when the state attorney undertakes to show that the defendant, who offered himself as a witness, was once before convicted of a similar crime to that for which he is then being tried, he seeks to obtain an advantage in aid of conviction which the statute does not contemplate. When identity is uncertain or motive doubtful...