Pittman v. State

• Decision Date: 09 July 1889
• Parties: PITTMAN v. STATE.
• Court: Florida Supreme Court

6 So. 437

25 Fla. 648

PITTMAN v. STATE.

Florida Supreme Court

July 9, 1889

Error to circuit court, Gadsden county; DAVID S. WALKER, Judge.

Syllabus by the Court

SYLLABUS

1. A witness may, without being an expert, testify from his knowledge as to the length, depth, and directions of wounds.

2. Any weapon is a deadly weapon which is likely to produce death but a weapon capable of producing death is not necessarily a weapon likely to produce death.

3. The omission of the clerk of the circuit court to put the usual file-mark on an indictment which has been pleaded to, and of which the record shows due presentation by a grand jury in open court, is not a ground for arrest of judgment.

4. The indictment charges that the defendant 'in and upon one George H. Hughes, with a certain deadly weapon, to-wit, an open knife, with which he, the said Edward F. Pittman, was then and there armed, feloniously, wilfully, and of his malice aforethought did make an assault, and the said George H. Hughes, in and upon the right side of the neck of him, the said George H. Hughes, then and there, with the knife aforesaid, and by such cutting, stabbing, and wounding feloniously, willfully, and of his malice aforethought to kill and murder.' Held, that the averments of the indictment are sufficient to show that the assult was made by the defendant upon Hughes.

5. A man indicted for assault with intent to murder may, under such charge, be convicted of an aggravated assault.

COUNSEL John W. Malone and Edward Owens, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

MITCHELL J.

The plaintiff in error was tried in the circuit court upon an indictment charging him with assault with intent to murder George H. Hughes, and was convicted of an aggravated assault. There were motions for new trial and in arrest of judgment, both of which motions were overruled. The defendant was sentenced to imprisonment in the county jail for the term of one year, and to pay the costs of suit; from which rulings and sentence the case was brought to this court upon writ of error.

The following are the errors assigned: (1) The admission of the testimony of T. L. Wragg; (2) the overruling of the motion for new trial; (3) the overruling of the motion in arrest of judgment.

The evidence sent up in the transcript of the record tends to show that on the 3d day of March, 1888, the plaintiff in error and George H. Hughes being in the store of Stearns, in the town of Quincy, plaintiff in error asked Hughes why he did not speak to him, and that Hughes replied: 'This is a free country, and I will speak to whom I please.' Pittman again propounded the same question, and Hughes replied as before, when Pittman said: 'I want to know what you have heard about me, and if you don't tell me you are a d---d rascal.' Hughes replied: 'If you say I am a d---d rascal, you are another.' Pittman then struck or struck at Hughes with his open hand, and Hughes struck back with his fist, giving Pittman a severe blow in the face, and then the parties struck each other rapidly, and it was discovered that Pittman had a knife in his left hand, with which he was striking Hughes. After the difficulty was over it was found that Hughes had been cut on the right side of the neck, and on the right ear, and across the cheek. The wounds were bleeding profusely. One entered at the back of the neck where it was an inch deep, and ranged forward, and was not so deep where it terminated. The other cut through the right ear, ranged forward, and across the right cheek. That Hughes was under treatment for the wounds so received for several weeks. There is also some evidence tending to show how Pittman held the knife at the time he did the cutting; that is, that he held the blade between his thumb and forefinger and gauged it. This was for the purpose of showing that the knife, as used by him, was not a deadly weapon.

T. L. Wragg, a witness for the state, testified as to the depth, length, and direction of the wounds upon Hughes, which evidence was objected to in the court below upon the ground that it was irrelevant, but before this court it is insisted that the evidence of Wragg was inadmissible, upon the ground that he was not an expert. But we are unable to comprehend the force of the argument of counsel in either event. If the evidence of Wragg was irrelevant, then all the evidence in the case was irrelevant; but this, counsel do not insist upon. Wragg did not testify as an expert. He only testified that he saw the wounds on Hughes; that the wounds were on the neck and face; they were so long and so deep; and expressed no opinion in regard thereto. There can be no objection to such testimony.

The next question is, did the court err in overruling the motion for a new trial? The second part of the first ground of the motion for new trial--that is, that the verdict of the jury was contrary to the evidence--is not insisted upon by counsel for plaintiff in error, and for this reason we will not comment upon the evidence further than to remark that it tends to show that the plaintiff in error was the aggressor throughout in his difficulty with Hughes, and that after provoking the difficulty he used a deadly weapon upon an unarmed man, and that as to how Pittman held the knife at the time he was cutting Hughes can make no difference when the serious nature of the wounds received by Hughes is considered.

As to the first part of the first ground for new trial, it is insisted that the verdict was contrary to law; but as to how or wherein the verdict was contrary to law we are not informed, nor can we see that the jury violated any law in rendering their verdict as it was rendered. The verdict conformed to the law as given to the jury by ...