Robinson v. State

• Decision Date: 06 January 1916
• Parties: ROBINSON v. STATE.
• Court: Florida Supreme Court

70 So. 595

70 Fla. 628

ROBINSON v. STATE.

Florida Supreme Court

January 6, 1916

Error to Circuit Court, Volusia County; Jas. W. Perkins, Judge.

John Robinson was convicted of murder in the first degree, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Intelligence and not age, is the proper test by which competency of an infant witness should be determined, and where the witness shows an appreciation of the nature and obligation of an oath, competency to testify appears.

A cause should not be reversed, for insufficiency of the evidence where other competent evidence is sufficient to sustain the verdict, though a child's testimony be admitted, which if incompetent, could not reasonably have influenced the jury.

It was not error for the state attorney to interrupt defendant's counsel to state to the jury that 'in this case you can find the defendant guilty of murder in the first degree, or you can acquit him entirely,' where the indictment was found more than 2 years after the homicide was committed, so as to bar a conviction except for a capital offense, and where the interruption did not deprive defendant's counsel of an opportunity to reply, and the statement could not have prejudiced the jury in view of the evidence and the charges given.

A defendant in a criminal case cannot avail himself of an error in a charge given by the trial court where the same error is embraced in instructions requested by him and given by the court.

Judgment will not be reversed for erroneous charges as to the lesser degrees of homicide where the jury found the defendant guilty of murder in the first degree, and the charges could not reasonably have misled the jury.

A judgment should not be reversed or new trial granted for error of procedure, unless it shall appear from an examination of the entire cause that the error has injuriously affected the substantial rights of the complaining party.

A judgment will not be reversed in appellate proceedings on the ground that the evidence is insufficient to support the verdict, where there is sufficient evidence to sustain the verdict, and it does not appear that the jury were not governed by the evidence in making their finding.

COUNSEL

Tom B. Stewart and J. P. Simmons, both of De Land for plaintiff in error.

T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

WHITFIELD, J.

On April 10, 1913, John Robinson was indicted for a murder alleged to have been committed October 19, 1910. He was tried in April, 1915, and convicted of murder in the first degree with a recommendation to mercy. Under the statute the sentence was life imprisonment. On writ of error it is argued that error was committed in allowing a child witness to testify, in permitting the state attorney to state, and in not striking the statement to the jury that because the indictment was not found within 2 years after the alleged homicide, the jury 'can find the defendant guilty of murder in the first degree or acquit him entirely,' and in denying a new trial upon grounds of erroneous charges and the insufficiency of the evidence.

The child witness who was objected to because of her youth was about 9 years old at the trial in April, 1915. In October 1910, when the homicide occurred, she was about 4 1/2 years of age. On examination as to her qualification she stated that she had attended school and could read in a primer; that holding up her hand in taking an oath means 'don't tell no tale'; that if she does not tell the truth 'the devil will catch me'; that it is not right to tell a lie; that she lives in Orange City, but does not know the county or state; that she had been to church, but not to Sunday School, and had never heard of the Bible. Her testimony on examination as to her qualifications and as to what she saw at the homicide indicated intelligence and appreciation of the duty to tell the truth; and it cannot be said that the trial judge who saw and heard the witness, abused his judicial discretion in receiving her testimony as to the homicide. Intelligence, and not age, is the proper test by which the competency of an infant witness should be determined. Where the witness shows an appreciation of the nature and obligation of an oath, her competency to testify appears. See Griffin v. State, 48 Fla. 42, 37 So. 209; Clinton v. State, 53 Fla. 98, 43 So. 312, 12 Ann. Cas. 150; Johnson v. State, 64 Fla. 321, 59 So. 894; State v. Michael, 37 W.Va. 565, 16 S.E. 803, 19 L. R. A. 605; Zunago v. State, 63 Tex. Cr. R. 58, ...