Peaden v. State

• Decision Date: 20 October 1903
• Citation: 46 Fla. 124,35 So. 204
• Parties: PEADEN et al. v. STATE.
• Court: Florida Supreme Court

35 So. 204

46 Fla. 124

PEADEN et al. v. STATE.

Florida Supreme Court, Division A.

October 20, 1903

Error to Circuit Court, Santa Rosa County; Ludius J. Reeves, Judge.

Tom Peaden and Sam Foster were convicted of manslaughter, and bring error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where a challenge of a juror for cause is overruled, and the defendant subsequently rids himself of the obnoxious juror by a peremptory challenge, such ruling cannot avail him in an appellate court, if it is not made to appear that his quota of peremptory challenges was exhausted before the filling of the jury panel.

2. It is settled in Florida that the trial judge, in the exercise of a sound discretion, has the right to excuse a juror although he may be competent to serve as such, and the exercise of such discretion is not error, unless abused to the detriment of a defendant.

3. Trial judges should not permit private conferences with them in reference to any question or issue arising in the trial of any criminal cause before them, by the prosecuting attorney or any one else. Defendants in criminal cases--particularly in capital cases--have the right to an open, public trial and to be fully apprised of everything in any manner affecting their rights in such trial; and it trenches close upon an invasion of such right to have the judge pass upon any question affecting their trial upon undisclosed facts within the secret knowledge of the judge, or secretly communicated to him by others.

4. Where a state's witness on direct or cross-examination does not testify anything with reference to a given fact or subject, it is not proper to permit him on cross-examination to be questioned as to what he may have said to others about such fact or subject; and, if the defendant afterwards makes such witness his own, it is not then proper to permit him to question such witness as to what he may have told others about such fact or subject, as substantive evidence thereof. What a witness may have said to others, while not under oath in reference to any given fact, is no proof of such fact.

5. It is not error to refuse to permit a witness to be cross-examined in reference to a subject upon which he has not testified in his direct examination.

6. Where charges are not excepted to in the trial court, they cannot be made the subjects of assignments of error before an appellate court.

7. It is not error to refuse to reiterate a charge that has already, in substance, been given to the jury.

8. Because the general character of a witness for veracity may be impeached or shown to be bad, it does not follow that a jury, as a matter of law, are obliged to disregard any or all testimony that he may have given in a particular case on trial. On the contrary, though his general character for truth may have been shown to be bad, yet the jury may be impressed with the truth of his story in the particular case and, if they believe it to be true, it is their duty to consider it and to give it due weight, and not to disregard it merely because his general character for veracity has been impeached before them.

9. Motions in arrest of judgment form part of the record proper in a case, and have no place in a bill of exceptions, and, when evidenced to an appellate court only by bill of exceptions, cannot be entertained or considered.

COUNSEL Daniel Campbell & Son, for plaintiffs in error.

J. B. Whitfield, Atty. Gen., for the State.

OPINION

TAYLOR C.J.

The plaintiffs in error, with William Foster and Milton Foster, were jointly indicted in the circuit court of Santa Rosa county for the murder of one W. J. Mercer. They were jointly tried, which trial resulted in the acquittal of William and Milton Foster, and in the conviction of the plaintiffs in error of manslaughter, to review which they have taken writ of error from this court.

The first assignment of error is the refusal of the judge to sustain the challenge for cause made by the defendants to a venireman--one George Stewart. This talesman answered on the voir dire that he had formed and expressed an opinion in the case, but that it was not a fixed opinion, and that he could try the case according to the evidence as it came from the stand; and on cross-examination he stated that what he had heard would have considerable weight with him, but that he supposed he could try the case by the evidence as it came from the stand, regardless of what he had heard. The defendants challenged him for cause, which challenge was overruled, and to this ruling exception was taken. Even if the overruling of this challenge for cause was erroneous, which we do not decide, it cannot avail the defendants here, for the reason that it appears that they rid themselves of the obnoxious talesman by a peremptory challenge, and it is not made to appear whether or not their quota of peremptory challenges was exhausted before the filling of the jury panel. If such challenges were not so exhausted, they were not harmed by the disallowance of such challenge for cause. Green v. State, 40 Fla. 191, text 194, 23 So. 851, and authorities there cited.

The second assignment of error is the ruling of the court in sustaining the state's challenge for cause of one Neil Campbell, a talesman. The facts with reference to this ruling are stated in the bill of exceptions as follows: 'One Neil Campbell, being called as a juror and examined as to his qualifications, answered that he was qualified, whereupon the state attorney, after private consultation with the court, announced that the state would challenge the juror for cause known to the court, whereupon the court ruled that the said challenge should be granted,' to which exception was duly taken. It is settled here that the trial judge, in the exercise of a sound discretion, has the right to excuse a juror, although he may be found to be competent to serve as such, and the exercise of such discretion is not error, unless abused to the detriment of a defendant. John D. C. v. State ex rel. Julia V. H., 16 Fla. 554; Ellis v. State, 25 Fla. 702, 6 So. 768; Edwards v. State, 39 Fla. 753, 23 So. 537; Mims v. State, 42 Fla. 199, 27 So. 865; Mathis v. State, 45 Fla. ----, 34 So. 287. Nothing is exhibited in the record tending to show that these defendants were in any manner damnified by this ruling. It is not shown that they were not tried by a perfectly competent and impartial jury. Neither is it shown that the state's peremptory challenges had been exhausted, or even resorted to at all, or that the prosecution gained any undue advantage by the discarding of the juror, or that the defendants were in any manner injured thereby. Under these circumstances, the ruling of the court cannot avail the defendants for reversal here. Before passing this assignment of error, however, we deem it incumbent upon us to caution the trial judges against the impropriety of permitting private conferences with them in reference to any question or issue arising in the trial or any criminal cause before them, by the prosecuting attorney or any one else. Defendants in criminal cases--particularly in capital cases--have the right to an open, public trial, and to be fully apprised of everything in any manner affecting their rights in such trial; and it trenches close upon an invasion of such right to have the judge pass upon any question affecting their trial upon undisclosed facts within the secret knowledge of the judge, or secretly communicated to him by others.

The 3d 4th, 5th, and 6th assignments of error question the propriety of the court's ruling in refusing various questions by the defendants' counsel upon the cross-examination of a state's witness, Mrs. Josephine Mercer, and will be considered together. This witness was the wife of the deceased, and testified to having reached the dead body of her husband, where it lay in the woods, about three-fourths of a mile from her house, among the first who got there after the tragedy; and she testified, also, that among the first to get there after she did was Mrs. Rebecca Foster, the wife or mother of one of the defendants, and that, on being asked by Mrs. Foster what was the matter, she (the witness) replied that 'they killed my husband,' upon which defendants' counsel, on cross-examination, asked her the following questions: 'Did you tell her that you knew something was going to happen, that he was the maddest man you ever saw, and that you ought to have followed him off that morning?' And after testifying that she had seen Mr. Peaden, the father of the defendant, there that morning, she was asked the questions: 'Did you have any conversation with him?' 'Did you not say to Mr. Peaden, when he told you his son had got shot--Didn't you remark, 'I knowed he would get it'?' She had also testified to a quarrel between the defendant Peaden and her deceased husband the evening (Saturday) before the homicide on Sunday morning, and the following question was asked her on cross-examination: 'On that Saturday evening you say they had that disturbance, didn't you testify in the preliminary examination that your husband was the maddest man you ever saw?' All of these questions were objected to by the state attorney, and the objections were sustained by the court, and these rulings constitute the third, fourth, fifth, and sixth assignments of error. There was no error here. The witness had not testified to anything relative to the frame of mind that her deceased husband was in, either the morning of the homicide or the evening before--whether he was angry or in pleasant mood, or whether he had any intention of shooting or doing violence to the defendant Peaden or any one else--so that as a foundation for impeachment they were improper questions, as she had testified to nothing that...