Mitchell v. State

• Court: Florida Supreme Court
• Writing for the Court: TAYLOR, C.J.
• Citation: Mitchell v. State, 43 Fla. 584, 31 So. 242 (Fla. 1901)
• Decision Date: 23 July 1901
• Parties: MITCHELL v. STATE.

31 So. 242

43 Fla. 584

MITCHELL v. STATE.

Florida Supreme Court

July 23, 1901

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

William Mitchell was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The physical or mental condition or appearance of a person, or his manner, habit, or conduct, may be proved by the opinion of an ordinary witness, founded on observation.

2. General objections to questions addressed to witnesses without stating the precise ground of objection, are vague and nugatory, and are without weight before an appellate court.

3. It is not reversible error for the court to refuse to interfere with the argument of counsel because it is illogical, or not based on deductions reasonably inferable from the facts.

4. If from the verdict returned, it is clear that a charge given did not influence the jury in arriving at it, and if, from the standpoint of the verdict actually found, such charge was favorable to the defendant, he cannot complain of it on writ of error, even though it may have been erroneous.

5. Applications for new trial upon the ground of newly-discovered evidence are looked upon with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial; (2) the party must have used due diligence to discover and procure it on the former trial; (3) it must be material to the issue; (4) it must go to the merits of the cause, and not merely to impeach the character of a witness; (5) it must not be merely cumulative; (6) it must be such as ought to produce on another trial an opposite result on the merits. The party applying must make his vigilance apparent; for it it is left even doubtful that he knew of the evidence, or that he might, but for negligence have known of and produced it, he will not succeed in his application. It is no sufficient proof of diligence in this respect merely to assert in the affidavit that the defendants have used every endeavor to obtain evidence bearing on the issues involved in the case. Neither is it sufficient to show that the newly-discovered evidence was not known to the defendant's counsel until after the former trial.

COUNSEL C. M. Jones (Mark D. Brainard, on the brief) for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR C.J.

The plaintiff in error, William Mitchell, or Will Mitchell, as he is called in the indictment, was indicted and tried for, and convicted of, murder in the first degree, for the homicide of one Aaron Hines, with recommendation to mercy, and sentenced to life imprisonment, at the fall term, 1900, of the circuit court of Escambia county, and from such sentence took writ of error here.

After two witnesses for the state had testified, in substance, that they were present with the deceased and the defendant at an entertainment at the house of one Gaines on the night of the homicide, and that at said entertainment, some hours prior to the homicide, they were present when the deceased, in play, fastened a spring clasp from a suspender on the ear of the defendant, the deceased calling it a 'kissing bug,' and that a few words were passed about it between the deceased and the defendant, the latter saying to the former that 'he would get him for it,' or 'would see him again,' the state attorney asked of one of such witnesses the following question: 'What was Mitchell's manner at that time?' and of the other witness: 'What was Mitchell's manner at the time the above remarks were passed? What kind of humor did he seem to be in?' These questions were objected to by the defendant, the objections were overruled, and the defendant excepted; and such rulings constitute the first and second assignments of error. The objection advanced at the trial to the first of the above questions was that it called for a conclusion of the witness. To the other question propounded to the second witness no specific objection was raised. Both of these rulings were proper. Both questions sought to elicit the mental condition of the defendants as exhibited by his manner on the occasion inquired about,--whether he was in an angry or friendly mood,--and both fall within the rule that 'the physical or mental condition or appearance of a person, or his manner, habit, or conduct, may be proved by the opinion of an ordinary witness, founded on observation.' Higginbotham v. State, 42 Fla. 573, 29 So. 410, and authorities there cited.

At the trial the defendant took the stand as a witness on his own behalf, and testified, in substance, that while he was sitting down at the entertainment, called a 'mite meeting,' with one girl by his side, and another in front of him, the deceased put a kissing bug on his ear; that it hurt so bad he jumped up, took it off and threw it down, and asked deceased what he did it for, and that deceased then asked if he did not like it, and, on his saying 'No,' the deceased struck him in the face and said, 'Find it then,' and 'said I had to find it,' and struck him in the face two or three times; that the whole crowd of boys were there, and they said, 'Make him find it;' that he broke out of the crowd and remained aloof from them the rest of the evening; that one of the girls with him was named 'Bama,' and was near enough, if noticing, to have seen deceased strike him in the face; that the homicide took place on the street after the entertainment had broken up; that he purposely remained behind to let the deceased and other boys get out of the way before he left the house of the entertainment, and that while he was on his way home in the company of two girls, one of whom was Bama, he noticed a crowd of the same boys standing at a corner, and on his coming up one of them remarked, 'We will get him; here he comes,' upon which he handed a waiter he was carrying to one of the girls, and crawled through a crack in a fence near by, when the whole crowd began throwing brickbats at him, knocking him down, and after they had thus knocked him down two or three times he drew his pistol and fired into the crowd, as all of them were throwing bricks at him, and that he could not tell the deceased from any one else in the crowd; that he shot at the crowd, and specially at no one; that the girl Bama was with him, and had the same opportunity of seeing and hearing what then happened as he had. At this juncture the state attorney, on cross-examination, asked him the following question: 'Where is Bama now?'--to which question the defendant objected generally, without assigning any ground of objection, which was overruled and exception noted. This ruling is assigned as the fourth error. The state attorney afterwards, without objection, drew from the defendant on cross-examination the fact that he did not know where the girl Bama was, and that he had not tried to find her, and had not had a subpoena issued for her. She was not offered as a witness. In his argument to the jury the state attorney said that ...