Nickles v. State
| Decision Date | 19 July 1904 |
| Citation | 37 So. 312,48 Fla. 46 |
| Parties | NICKLES v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; Lucius J. Reeves, Judge.
Walter Nickles was convicted of assault with intent to kill and brings error. Affirmed.
Syllabus by the Court
1. The fact of the finding of empty gun shells and gun wadding on the scene of a shooting affray, the next day after such affray, is not inadmissible as evidence, on the ground of remoteness, if such fact tends to corroborate the case made by the prosecution or defense.
2. A witness who testified to having heard the report of the gun fired in an affiray, and who testified to having seen another witness, 10 or 15 minutes before the firing of the gun, going away from the scene of the affray after water to a well that such witness testified was about three-eighths of a mile away from the scene of the shooting, will not be allowed to state whether such water-carrying witness had time to get back to the scene of the affray before such shooting, on the ground that such evidence, would be merely the expression of the witness' opinion, which the jury could arrive at as well as such witness from the data given. Per Carter, J dissenting.
3. A witness, in reply to cross-interrogatories, admitted having written and mailed a letter, purporting to have been signed by himself, at a certain post office, addressed to the state attorney, about a certain date, and also admitted having written in such letter material parts of its contents that were quoted to him verbatim. The state attorney also testified to having received by due course of mail the letter purporting to have been written by such witness at about the date of its mailing, and exhibited the envelope in which it was received, which showed by its postmark that it had been mailed at the post office named by the witness; the state attorney also testifying that such was the only letter he had ever at any time received from such witness. Held, that under these circumstances such letter was, without being exhibited to the witness, sufficiently identified as having been written by such witness to become admissible in evidence.
4. There is no error in the refusal of the trial court to reiterate in different language charges that have already been given in substance.
5. The following verdict: 'We, the jury, find the defendant guilty of assault with intent to murder in the first degree'--held to be sufficient to convict the defendant of the crime of assault with intent to commit murder in the first degree; the word 'murder' being often properly used in the dual character of both a noun and a verb.
COUNSEL Benj. S. Liddon and Edwin R. Blow (W. H. Price on the brief), for plaintiff in error.
W. H Ellis, Atty. Gen., for the State.
The plaintiff in error was indicted, tried, and convicted of the crime of assault with intent to murder in the circuit court of Jackson county at its Spring term, 1903, and from the sentence imposed seeks relief by writ of error here.
The state introduced one James Lewis as a witness, who, after testifying that he had visited the scene of the shooting by the defendant on the next day after the occurrence, was asked the question: 'Can you state whether or not any shells were picked up that day or not?' To this question the defendant objected, on the ground that what was done on the next day after the shooting was not recent enough. The objection was overruled and exception taken. The witness was then asked the following question: 'State whether or not you picked up anything, or anything was picked up in your presence, at that time.' The defendant objected to this question on the same ground as the above, but the court overruled the objection, to which ruling exception was taken and these rulings constitute the first assignment of error that is argued. The witness, in reply to these questions testified to having picked up some gun wadding on the scene of the shooting. There was no error here. The locality and circumstances attending the shooting were fully described by other witnesses. The fact of the shooting was not denied by the defendant, and the finding of gun wads or empty gun shells on the ground the next day after the shooting, corresponding in size with the caliber of the gun used, was a corroborative circumstance not improper, on the ground of remoteness, to be considered by the jury for what it was worth in connection with all the other facts in the case.
Alfred Nickles, a witness for the defendant, whose testimony was taken out of court on interrogatories, after testifying that he was quite near to the scene of the shooting, and heard the shot, and that he saw one Joe Seegars, who as a witness for the state had testified that he was present and witnessed the shooting, about 10 or 15 minutes before the shooting, going away from the scene thereof to the prosecuting witness' house, distant about three-eighths of a mile, after water, was asked the question by the defendant: 'Did he have time to get back to place of difficulty, before difficulty, after getting water?' and in answer thereto said: 'No, sir; he did not have time to leave Paul's house.' After this answer had been read to the jury, on motion of the state attorney it was stricken out by the court, on the ground that it was an expression of opinion by the witness. Whereupon the court instructed the jury to disregard the evidence of the witness to the effect that the boy Seegars had not had time to get back--to leave Paul's house. To both of these rulings the defendant excepted, and they constitute the second assignment of error argued. There was no error here. The witness stated about how long before the shooting it was that he saw the boy Seegars going away after water, and he also stated the distance from the scene of the shooting to the place where he went for water, and the jury were as well qualified as was the witness to say from this data whether the boy could have gotten back in time to witness the shooting, and the stricken answer of the witness was merely the expression of his opinion on the subject.
The third assignment of error insisted on here is the admission in evidence on behalf of the state of a letter written by the defendant's witness Alfred Nickles, who is the father of the defendant, to the state attorney, the sum and substance of which was a request to the state attorney that he should avoid his obligations to the state and favor the defendant as much as possible. It is urged here that it was not admissible, because it was not shown to have been written by the said Alfred Nickles. We do not think there is any merit in this assignment. In the cross-interrogatories propounded to the witness Alfred Nickles he was asked if he had not written a letter to the state attorney, about the time of the receipt by him of the letter introduced, and if he had not mailed said letter at a place called Bascom, all of which he answered in the affirmative. Material parts of the letter were also quoted to him verbatim in the interrogatories, and he was asked if he had written that to the state attorney, to which he replied in the affirmative. Besides this, the state attorney testified to the receipt of the letter at about the time it was mailed by due course of mail, and exhibited the...
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