Perry v. State
| Decision Date | 18 February 1941 |
| Citation | 200 So. 525,146 Fla. 187 |
| Parties | PERRY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Alachua County; H. L. Sebring, Judge.
C. T Perry was convicted of murder in the second degree, and he brings error.
Affirmed.
Douglas & Schad, S. L. Scruggs, and Ira J. Carter Jr., all of Gainesville, for plaintiff in error.
George Couper Gibbs, Atty. Gen., and William Fisher, Jr., Asst. Atty. Gen., for defendant in error.
The plaintiff-in-error, C. T. Perry, was indicted for first-degree murder by a grand jury of Alachua County Florida. He was tried in March, 1940, and a verdict of guilty of murder in the second degree was returned. From a judgment of conviction and sentence to imprisonment in the State Penitentiary, this writ of error is brought.
The only questions raised by the plaintiff-in-error are as to the sufficiency of the evidence to sustain the verdict of second-degree murder and as to the refusal of the trial court to declare a mistrial for an allegedly improper question propounded by the State's Attorney. The State has questioned the propriety of this court reviewing an order denying a motion for a new trial when the record 'affirmatively' shows such motion was not filed within the time required by law, to wit, four days after verdict. See 4497 (2810), C.G.L.
It is not certain from the record just when the verdict was returned by the jury; but since the trial court denied the motion for new trial instead of dismissing it, we must presume, in the absence of a contrary showing by the record that his ruling was correct and the motion was filed within the time limited by statute.
A careful study of the record discloses some conflict and disputes in the evidence submitted to the jury. The State contends that the accused fatally shot the deceased in a fit of rage because the deceased and his brother were attempting to remove a lamp shade belonging to deceased's wife; that he did not shoot them to repel any threatened or attempted injury to himself; and also that he shot both the deceased and his brother again when they were lying on the floor, after any possible danger of the accused being injured had passed. The defendant admitted that he shot the deceased, but contended that he acted in self-defense.
The defendant's contention is supported by the testimony of his wife. Several witnesses testified the shots were fired in rapid-fire order, giving the defendant's contention further corroboration. However, it cannot be said on this record that there was no substantial evidence from which the jury might lawfully have inferred the necessary elements of second-degree murder. The testimony of the deceased's brother, who was himself shot by the defendant, is in direct conflict with the defendant's contention of self-defense. This testimony is strongly corroborated by the testimony of several witnesses living in the next apartment who heard the shooting and the conversation leading up to it. Their testimony is to the effect that the last shots were fired shortly after the first ones, but with noticeable period of time intervening.
Where there is conflict in the testimony, it is for the jury to say what testimony they believe and what they will disbelieve. Where there is legal evidence sufficient, if believed by the jury, to support the verdict, it will not be disturbed on appeal, there being nothing to indicate that the jury were influenced by considerations outside the evidence. See Davidson v. State, 99 Fla. 732, 127 So. 342; Brown v. State, 135 Fla. 90, 184 So. 777; Danley v. State, 135 Fla. 28, 184 So. 525; Davis v. State, 138 Fla. 798, 190 So. 259; Taylor v. State, 139 Fla. 542, 190 So. 691, 124 A.L.R. 835; and cases cited therein.
It is also contended by the defendant that the court erred in denying the defendant's motion for a mistrial because of an alleged improper question addressed to one of the witnesses by the State's Attorney, to wit:
The purpose of showing a witness has been previously convicted of a crime is to affect his credibility. Madison v State, 138 Fla. 467, 189 So. 832; Taylor v. State, supra. Where a witness has been impeached by proof of a prior conviction of crime, he may show the fact that he has served his time, or had been paroled or pardoned. Wharton's Criminal Evidence, Vol. 3, p. 2300. See Harris v. Commonwealth, 129 Va. 751, 105 S.E. 541; Smith v. Commonwealth, 161 Va. 1112, 172 S.E. 286; State v. Taylor, 172 La. 20, 133 So. 349. The State should have been permitted to ask the above question for the purpose of...
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Slaughter v. State
...the jury in order that they disregard this testimony. We fail to find this prejudicial under the rationale set forth in Perry v. State, 146 Fla. 187, 200 So. 525 (1941); Dean v. State, 83 So.2d 777 (Fla.1955) and Williams v. State, Supra. In respect to point ten, supra, appellants were mere......
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Breedlove v. State
...The court denied the motion. A mistrial should be declared for prejudicial error which will vitiate the trial's result. Perry v. State, 146 Fla. 187, 200 So. 525 (1941). If the alleged error does no substantial harm and causes no material prejudice, a mistrial should not be declared. Id. Im......
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Lynch v. State
...An appropriate cautionary instruction was given which negated any possible harmful effect the statement could have had. Perry v. State, 146 Fla. 187, 200 So. 525 (1941). Defendant also contends that the identification at the Junior College constituted pretrial identification which did not f......
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Johnson v. State
...in its totality does not indicate that the response was of sufficient prejudicial nature to vitiate the entire trial. Perry v. State, 146 Fla. 187, 200 So. 525; Feldman v. State, Fla.App.1967,194 So.2d 48; Garcia v. State, Fla.App.1967, 204 So.2d As to the failure to grant a hearing on the ......