Mercer v. State

• Decision Date: 17 May 1898
• Court: Florida Supreme Court
• Parties: MERCER et al. v. STATE.

24 So. 154

40 Fla. 216

MERCER et al. v. STATE.

Florida Supreme Court

May 17, 1898

Error to circuit court, Jackson county; Evelyn C. Maxwell, Judge.

Samuel C. Mercer and others were convicted of driving an ox on a railroad track, and bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. For the purpose of quashing an indictment formally returned by a properly qualified grand jury, courts will never inquire into the character of the evidence that influenced its finding and return.

2. Every act and declaration of each member of a conspiracy to commit crime, in pursuance of the original concerted plan and with reference to the common object, done or made durning the pendency of the criminal enterprise, is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against each of them.

3. Chapter 4029, Laws approved June 4, 1891, and section 2863 Rev. St., that, combined, remove the incompetency as witnesses of husband and wife, because of the interest of either, in both civil and criminal cases, do not have the effect of empowering either of them, when they become witnesses, to give illegal or incompetent testimony, by detailing or exposing those confidential transactions or communications that have passed between them in consequence of their marriage relation, that the law privileges and shields from exposure by either of the parties to the communication; and this, to preserve a wholesome public policy. The matter that the law prohibits either the husband or wife from testifying to as witnesses includes any information obtained by either during the marriage, and by reason of its existence. It should not be confined to mere statements by one to the other, but embraces all knowledge upon the part of either obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known. Where the incompetency, as witnesses, of husband and wife, on the ground of interest has been removed by statute, as is the case here, either of them may testify, for or against the other, to any fact the knowledge of which was acquired by them independently of their marriage relation, in any manner not involving the confidence growing out of that relation.

4. Letters from the husband to the wife, or from the latter to the former, are inherently privileged, from the very character of the communication itself; and such privilege protects them from exposure in evidence, wheresoever and in whosoever hands they may be.

5. Whenever the character of a witness for truth is attacked in any way, either by showing contradictory statements of the matter of his evidence out of court, different from that sworn to, or by cross-examination, or by general evidence of want of character for truth, or that he has been convicted of crime, or engaged in some act affecting his credibility, like suborning or attempting to suborn a witness or suppress testimony in the case on trial, it is competent for the party calling him to give general evidence in support of the good character of the witness. In determining the propriety of the admission of evidence to sustain the character of a witness the distinction should be observed between an attack upon the character of the witness, as such, for credibility, and an attack upon the character of the testimony that he gives for belief.

6. When the character of a witness is gone into, the only proper object of inquiry is as to his reputation for truth and veracity. Neither his general character, nor particular phases or traits of character, can be gone into, but the inquiry must be confined to his reputation or character for truth and veracity.

7. When an objection to the introduction of incompetent evidence has been once properly taken, and overruled by the court, it is not waived, although the same evidence may have been subsequently admitted, through other witnesses, without objection.

Taylor, C.J., dissents from the conclusion reached by the majority of the court, to reverse the judgment, on the ground that the error found, under the facts and circumstances in proof, was harmless.

COUNSEL John M. Calhoun, for plaintiffs in error.

William B. Lamar, Atty. Gen., and John H. Carter, for the State.

OPINION

TAYLOR C.J.

The plaintiffs in error were were on the 10th day of June, 1897, indicted, jointly with one Westley Bush, in the circuit court of Jackson county, for willfully driving an ox upon a railroad track. Severance was ordered as to the defendant Westley Bush, on the application of the plaintiffs in error; and they were jointly tried and convicted at the same term of the court, and sentenced--each of them--to 10 years in the penitentiary, and seek reversal here by writ of error.

Another indictment, signed by John H. Carter, as acting state attorney, against the same parties, charging the same offense, was returned by the grand jury on the 9th day of June, 1897, but upon this indictment a nolle prosequi was entered; and the indictment upon which the trial was had was returned by the grand jury on the 10th of June, 1897, signed by William B. Farley, acting state attorney. To this indictment the defendants plead in abatement as follows 'Now come the defendants, S. C. Mercer, Dock Mercer, Claude Wadsworth, and Westley Bush, and, for plea in abatement to the indictment against them, say: That one John H. Carter was on and before the 9th day of June, A. D. 1897, the local attorney of the Louisville & Nashville Railroad Company, a corporation, the moving prosecutor of these defendants, and that the said John H. Carter, while such local attorney under the employ and pay of said railroad company, was on the 31st day of May, A. D. 1897, appointed and sworn in as acting state attorney, in lieu of Hon. W. H. Milton, the duly elected and qualified state attorney; and as such acting state attorney, and also local attorney for the Louisville & Nashville Railroad Company, he advised, counseled, assisted, and attended upon, when so required, the grand jury which investigated the charges against these defendants. That as such local attorney for said railroad company he prosecuted these defendants upon examining trial, and still remains in the employ of said company. That under the sole advice, counsel, and instruction of the said John H. Carter, local attorney of said company as aforesaid, the grand jury of said county on the 9th day of June, A. D. 1897, returned a true bill against these defendants, charging them with the offense of driving an ox on the Louisville & Nashville Railroad track, intending at such time that said ox should be run against, struck, and killed or injured by the engines and cars of said railroad company, which said indictment was signed by the said John H. Carter as acting state attorney, and who was also at said time under the employ and pay of said railroad company as aforesaid, which said indictment was received in open court and filed, and upon said indictment these defendants were arrested and held. That at the time of finding of said indictment, and of the investigation of the charges against these defendants before said grand jury, the state had no other save and except the said John H. Carter, attorney for said railroad company as aforesaid, and that said indictment was returned solely and exclusively under his (the said John H. Carter's) advice and counsel as aforesaid. Reference is hereby made to said indictment filed May 9, 1897, which said indictment is on file in the office of the clerk of the circuit court of said county and state, and the same is asked to be taken as a part of this plea. That on the 10th day of June the said John H. Carter resigned as acting state attorney as aforesaid, and one W. B. Farley, Esq., was appointed by the court as acting state attorney, in lieu of the said John H. Carter. That thereupon the said acting state attorney on the same day, to wit, the 10th day of June, 1897, A. D., as aforesaid, nol. pros'd the said indictment filed on June 9, 1897, A. D.; and in lieu of said indictment the grand jury returned another indictment against these defendants, charging them with the same offense as charged in the indictment filed June 9th, and which last-mentioned indictment is a true and correct copy of the indictment filed June 9th, save and except that the said indictment filed June 10, 1897, was filed by W. B. Farley as acting state attorney, instead of said John H. Carter as such acting state attorney, as the said indictment filed June 9, 1897, was signed. That between the time of the filing of the indictment returned by said grand jury on June 9th, signed by said Carter (which was nol. pros'd as aforesaid), and the time of the filing of the indictment on June 10th, signed by the said Farley, no witnesses were examined by the grand jury--so these defendants are informed and believe--as to the charges against these defendants; and the finding of the second indictment as aforesaid was based by said grand jury solely and exclusively upon the testimony which was heard by them during the time that the said John H. Carter, attorney for said railroad company, was advising, counseling, and assisting said grand jury as acting state attorney as aforesaid. That the indictment under which these defendants are now charged was drawn up by the said John H. Carter, attorney for said railroad company, or under his directions, and that the only change between the first and second indictments against these defendants is the signature of the acting state attorney.' To this plea the state demurred upon the grounds that said plea was vague, indefinite, and uncertain, and was insufficient to be replied to, and because the allegations in said plea contained set up no legal bar or abatement...