Olive v. State

• Decision Date: 25 February 1938
• Citation: 131 Fla. 548,179 So. 811
• Court: Florida Supreme Court
• Parties: OLIVE v. STATE.

179 So. 811

131 Fla. 548

OLIVE v. STATE.

Florida Supreme Court, Division B.

February 25, 1938

Rehearing Denied March 30, 1938.

Error to Circuit Court, Polk County; W. J. Barker, Judge.

George D. Olive was convicted of murder in the second degree, and he brings error.

Affirmed.

COUNSEL Willson & Martin, of Bartow, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.

OPINION

CHAPMAN Justice.

On October 14, 1936, plaintiff in error, George D. Olive, was indicted by a grand jury of the circuit court of Polk county Fla., for murder in the first degree by shooting to death one O. M. Hall with a rifle. He filed a plea of not guilty to the indictment, was placed upon trial, and was convicted of murder in the second degree and by the judge sentenced to the State Penitentiary for a period of 25 years. A motion for a new trial was overruled bill of exceptions signed and settled, writ of error sued out, and the cause is here for review on a number of assignments of error.

It is contended that reversible error was committed in the lower court when the witness George Maddox was called to the stand as a court witness over the objection of the defendant. The State Attorney announced that 'there is a witness who was an eye witness to the transaction in the Olive place at the time of the shooting, but because of some conflicting statements the witness has made and because of the fact that he is a very close associate of the defendant, the State does not wish to vouch for him. I think before the State can ask the Court to call a witness it is the province and duty of the State Attorney to explain to the Court why he desires the witness called as a court witness. I do not care to vouch for him and I am asking the court to call him as a witness and let him testify of his own knowledge of the facts as a court witness.'

Counsel for defendant objected because it was highly improper and the statements made were improper in the presence of the jury and there was no showing made that the proposed statements would not be true or adverse to the State or defendant. Whereupon the court called the witness and he was examined by counsel for the respective parties. It is urged that this action on the part of the lower court was reversible error. The contention of counsel for plaintiff in error with reference to this assignment cannot be sustained. In the case of Selph v. State, 22 Fla. 537, it is said: 'The presiding judge has a right in the exercise of a sound discretion to call a witness either for or against the prisoner, and when so called and questioned by the court to permit both sides to cross examine him.' The record in this case shows that witness Maddox was called to the stand, duly sworn, and by the court interrogated. Counsel for the respective parties subsequently examined the witness Maddox. There was no error in this assignment. See Morris v. State, 100 Fla. 850, 130 So. 582.

Questions 1, 2, 3, and 4 are each predicated on charges or instructions of the court to the jury upon the law of the case. Exceptions were taken to each charge or instruction and assigned as error. We think that each of these questions can be considered under a single assignment. We have carefully examined each of the challenged instructions. In determining the correctness of charges or instructions, they should be considered as a whole, and, if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which standing alone might be misleading or erroneous, must fail. It is well settled that in passing on a single charge or instruction it should be considered in connection with all other charges bearing on the same subject. The rule is well expressed in Lewis v. State, 55 Fla. 54, text 63, 45 So. 998, 1001, when it was said:

'It is settled law in this court that in passing upon a single instruction or charge it should be considered in connection with all the other instructions and charges bearing on the same subject, and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction or charge must fail, unless under all the peculiar circumstances of the case the court is of the opinion that such instruction or charge was calculated to confuse, mislead, or prejudice the jury. Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 So. 318, and authorities therein cited; Davis v. State, 54 Fla. 34, 44 So. 757; Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 So. 761; Cross v. Aby, 55 Fla. 311, 45 So. 820, decided here at this term. It is also settled law here that where an instruction, as far as it goes, states a correct proposition of law, but is defective because it fails to qualify or explain the proposition it lays down in consonance with the facts of the case, such defect is cured if previous or subsequent charges or instructions are given containing the required qualifications or exceptions. It is not required that a single instruction should contain all the law relating to the particular subject treated therein. Atlantic Coast Line R. Co. v. Crosby, supra, and authorities therein quoted.'

We think the charges or instructions to the jury, considered in the light of other charges given, that there was no error committed in this connection on the part of the lower court. See Lowe v. State, 95 Fla. 81, text 83, 116 So. 240. We fail to find error in the instructions or charges given and assigned as error.

The bill of exceptions shows the following proceedings: 'During the argument of Mr. Martin, counsel for defendant, the following statement was made: 'I do not know why the State Attorney should not call as state witnesses those who are called as court witnesses. It looks like the State Attorney is very anxious to get a conviction in this case and he has used every sort of method and has gone to every length to do that. I will tell you why he has done that, and it is because he will be up for election next year and he thinks a conviction in this case will help him politically.' To which statement the State Attorney objected as follows: 'Such a statement is unfair, unjust and not justified either by the conduct of the State Attorney before or in the trial of this case or in the record and testimony in the case.' The Court ruled as follows: 'That argument is entirely improper, Mr. Martin, and the Court will have to reprimand you for it.”

It is contended by plaintiff in error that the proceeding, supra, was prejudicial to plaintiff in error placed defendant's counsel in an improper light before the jury, and was grossly unfair, and in effect denied the defendant the right to be heard by counsel. The case of Messer v. State, 120 Fla. 95, 162 So. 146, is cited and relied upon by counsel for plaintiff in error. We have examined this authority and can readily agree with the holding of the court. A similar proceeding was...