Putnal v. State
| Decision Date | 24 November 1908 |
| Citation | 47 So. 864,56 Fla. 86 |
| Parties | PUTNAL v. STATE. |
| Court | Florida Supreme Court |
Headnotes Filed December 8, 1908.
Error to Circuit Court, Taylor County; Bascom H. Palmer, Judge.
J. A Putnal was convicted of selling intoxicating liquors, and brings error. Affirmed.
Syllabus by the Court
General objections to evidence proposed, without stating the precise grounds of objections, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper, and inadmissible for any purpose or under any circumstances.
The trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will be interfered with by an appellate court only when a clear abuse thereof is made to appear.
It is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in truth exist; every presumption being in favor of the correctness of the rulings of the trial court.
If a question is propounded to a witness which tends to elicit improper testimony, it is the duty of the opposite party to object to it and obtain a ruling on his objection. If improper testimony is given in response to a proper question the proper method of removing it from the consideration of the jury is a motion to strike it. If improper testimony is given in response to an improper question to which no objection is made, a motion to strike is the recognized mode of removing it; but in such a case the granting or refusing of the motion is in the sound discretion of the trial court and an appellate court will not disturb such ruling, unless an abuse of discretion is shown.
In both criminal prosecutions and civil actions a motion to strike out the entire testimony of a witness should be denied, if any part thereof is admissible for any purpose. The motion should be confined specifically to the inadmissible portion.
In both criminal prosecutions and civil actions facts may be established by evidence thereof given on a former trial provided a proper predicate has been first laid therefor. To warrant the admission of such testimony it must be made to satisfactorily appear to the trial court: (1) That the party against whom the evidence is offered, or his privy, was a party on the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced.
In a criminal prosecution against the accused for selling intoxicating liquors without a license, when it has been made to satisfactorily appear that the accused had been tried and convicted of substantially the same crime in the mayor's or municipal court of a city or town in the same county, at which former trial the absent witness was duly sworn and testified against the accused, and the accused was afforded an opportunity of cross-examining such witness, and did cross-examine him, that such absent witness was of nomadic habits and was in such city or town for only two or three days, that his place of residence was unknown, and that he had left the county shortly after such trial, departing no one knew whither, and his whereabouts could not be ascertained by diligent inquity, the sheriff having made every effort to secure his attendance at such trial without success, a prima facie case for proving the former testimony of such absent witness is established.
In order that former testimony may be provable, it must have been taken in the course of a judicial proceeding in a competent tribunal. The particular character of the tribunal or proceeding, however, is immaterial, so long as it is judicial in its nature.
The admission of testimony given by a witness at a former trial in a criminal prosecution is not violative either of the hearsay rule or the constitutional provision of confrontation, provided a sufficient and proper predicate has been first laid therefor, which must be passed upon and determined by the trial court.
A motion to strike out evidence given in a trial before the mayor 'on the grounds that if there was such a trial there should be, and perhaps is, a record of it, and record is the best evidence,' is properly overruled, if for no other reason, because such motion was directed to matters in pais, which need not, and frequently never, become matters of record.
If the accused conceives that the state attorney, in his argument to the jury in the trial of the cause, is making material statements outside of the evidence and the reasonable bounds of argument, having no relation to the issues in the case and intended or calculated to excite the passions and influence the minds of the jury against him, he should promptly object thereto, stating the grounds of objection, secure a ruling of the court thereon, and, if the same is adverse to him, have his exception duly noted thereto.
The comments and arguments of counsel in the progress of a trial before a jury are controllable in the judicial discretion of the trial court, and where the accused in a criminal prosecution simply objects to the use of certain language by the state attorney, without stating the grounds of such objection, unless it plainly appears that such language was unwarranted and calculated to prejudice or injure the accused, an appellate court will not interfere with the discretion exercised by the trial court in overruling such general objection.
Section 3561 of the General Statutes of 1906, relating to searches without warrant, applies generally, and is not confined to 'the selling of liquors in counties or precincts voting against such sales,' as it was when originally enacted and prior to its being incorporated in and adopted as a part of such General Statutes.
Where one of the assignments of error is predicated upon the overruling of the motion for a new trial, an appellate court will consider only such grounds thereof as are argued; and, where such motion is submitted without argument, such assignment presents nothing for consideration.
Roberson & Small, for plaintiff in error.
The plaintiff in error was indicted, tried before a jury, and convicted of the crime of selling intoxicating liquors in the county of Taylor without a license. From the judgment and sentence imposed he seeks relief here by writ of error.
The first witness introduced on behalf of the state was J. H. Parker, who testified that he then was the sheriff of Taylor county, had been such sheriff in the year 1907 also, and that he knew a man who was said to be named Philip Cumberford, who had been summoned as a witness in such case. He was then asked the question, 'Have you made every attempt to get him here?' which was objected to by the defendant 'as irrelevant and incompetent.' The court reserved its ruling upon the statement made by the state attorney that he would show its relevancy, to which ruling the defendant excepted. The witness then replied to the question, 'Yes; I had an attachment for this man, but had not been able to locate him, and have no idea at all where he is now.' The defendant then moved to strike out this testimony, 'on the ground that it is irrelevant and immaterial to the issues, but the court reserved its ruling, upon the statement of the state attorney that he would show its relevancy,' to which the defendant excepted. These rulings form the basis for the first assignment.
It is settled law here that general objections to evidence proposed, without stating the precise grounds of objection, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper, and inadmissible for any purpose or under any circumstances. Kirby v. State, 44 Fla. 81, 32 So. 836; Williams v. State, 45 Fla. 128, 34 So. 279; Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Pittman v. State, 51 Fla. 94, 41 So. 385, s. c. 8 L. R. A. (N. S.) 509; Thomas v. Williamson, 51 Fla. 332, 40 So. 831; Williams v. State, 53 Fla. 89, 43 So. 428; Sims v. State, 54 Fla. 100, 44 So. 737.
It is further settled law here that the trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will only be interfered with by an appellate court when a clear abuse thereof is made to appear. Pittman v. State, supra, and authorities there cited; Hoodless v. Jernigan, 51 Fla. 211, 41 So. 194; Wilson v. Johnson, 51 Fla. 370, 41 So. 395; Seaboard Air Line Ry. v. Scarborough, 52 Fla. 425, 42 So. 706; Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 So. 318; Stearns & Culver Lumber Co. v. Adams, 55 Fla. ----, 46 So. 156. Suffice it to say that no error has been made to appear to us.
The second witness introduced on behalf of the state was W. B Davis, who testified as follows: The bill of exceptions discloses that 'the defendant moved to strike the evidence from the record as irrelevant and immaterial, and on the ground that, if there was a trial, there is or should be a record of it, and the record is the best evidence, which said motion was overruled by the court, because the mayor's court is not a court of record, to which ruling the defendant except...
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