Mungin v. State
| Decision Date | 03 April 1933 |
| Parties | MUNGIN et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Dade County; E. C. Collins Judge.
Isaac Mungin and another were convicted under an information charging robbery while armed with dangerous weapons, and they bring error.
Judgment affirmed.
COUNSEL George M. Okell, of Miami, for plaintiffs in error.
Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
The plaintiffs in error with Joe James were tried upon an information charging robbery while armed with dangerous weapons, with intent, if resisted by the person robbed, to kill or maim him. Section 7157, Comp. Gen. Laws 1927.
Joe James was acquitted, but Mungin and Bryant were convicted and they seek a reversal of the judgment on writ of error. The property alleged to have been taken was six five-gallon jugs of whisky, and the person robbed was alleged to be John D. Watson. All were persons of color. The robbery was alleged to have occurred in Watson's house at about 12:15 o'clock on the night of April 23, 1932, in Miami, Fla. The value of the property was alleged to be $60.
There is no objection to the information. The questions discussed in the brief of counsel for the plaintiffs in error are the sufficiency of the evidence to sustain the charge, the sufficiency of the identification of the two defendants convicted, the correctness of an instruction given by the court to the jury, and the propriety of the act of the county solicitor in announcing to the court, the jury being present, that, because a witness called by the state had surprised the solicitor in her testimony, it became necessary for him to 'impeach her.'
None of the questions, however, are presented by the record. The motion for a new trial is not evidenced by a bill of exceptions, and although the motion is incorporated in the record proper, it is not duly authenticated. See Branch v. State, 96 Fla. 307, 118 So. 13.
No objection was made to the declaration of the county solicitor as to the necessity which had arisen requiring him to impeach his own witness, and there is no error in the charge of which complaint is made. It was merely an instruction as to a rule for the weighing of evidence left optional for the jury to apply. It was unnecessary, but we cannot say it was harmful.
As to the fourth assignment, which rests upon a complaint that the county solicitor wrongfully announced to the court that he had been taken by surprise because of the testimony of a witness named Bessie Miles called by him, and who testified differently from what she had told the solicitor a few moments before concerning the persons who brought certain whisky to her house, and that he therefore would 'have to impeach her,' we find in the first place that no objection was made by defendants' attorney to the statement, no motion to strike it from the record, no objection to calling the so-called impeaching witness, and no objection to his testimony. So far as the point is involved it has therefore not been preserved. We perceive no error in the transaction, however, so grave as to require the court sua sponte to reverse the judgment. The witness had proved to be adverse, in that her testimony, if true, tended to exculpate the two defendants and to show that the principal prosecuting witness John Watson had falsely testified as to the alleged robbery. This on the theory that the whisky found in the room of Bessie Miles was the same which was alleged to have been taken from Watson. The solicitor asserted that she had misled him in that matter. In such case previous contradictory statements of the state's witness are admissible for impeachment. See Bryan v. State, 45 Fla. 8, 34 So. 243; Sylvester v. State, 46 Fla. 166, 35 So. 142.
In any case the matter is largely within the discretion of the trial court. Williams v. Dickenson, 28 Fla. 90, 9 So. 847.
The requirements of the statute were complied with by the solicitor, who mentioned to the witness the circumstance of the supposed statement sufficient to designate the particular occasion, and she was asked whether she made such statement. See section 4377, Comp. Gen. Laws 1927.
On the question of the sufficiency of the evidence to support the verdict, the propriety of this court passing upon it without the presence in the bill of exceptions of a motion for a new trial attacking the sufficiency of the evidence duly incorporated in the bill of exceptions was questioned as early as 1854 in the case of Pons v. Hart, 5 Fla. 457.
There has been no departure from that rule which in that case rested upon the constitutional power of the court as one of appellate jurisdiction. The defendants submit the question of the sufficiency of the evidence to the arbitrament of the jury, and take their chance of a decision in their favor but, said the court in the case cited, they are not confined to that course, for, if the jury finds against them, they may apply for a new trial. This gives the trial court an opportunity for specifically...
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