Rowe v. State

• Decision Date: 28 August 1935
• Citation: 120 Fla. 649,163 So. 22
• Court: Florida Supreme Court
• Parties: ROWE v. STATE.

163 So. 22

120 Fla. 649

ROWE v. STATE.

Florida Supreme Court, Division A.

August 28, 1935

Error to Circuit Court, Manatee County; Paul C. Albritton, Judge.

Allen Rowe was convicted of murder in the first degree, and he brings error.

Reversed and remanded.

COUNSEL William J. Ray and L. W. Hardy, both of Bradenton, for plaintiff in error.

Cary D Landis, Atty. Gen., and Dewey A. Dye, State Atty., of Bradenton, for the State.

OPINION

PER CURIAM.

Allen Rowe was indicted for the murder of Marvin B. Walker, and convicted of murder in the first degree with recommendation to mercy. He was sentenced to life imprisonment and took out writ of error.

On the night of the homicide, the defendant in company with others motored to the house of deceased, sat in the car, and honked the horn. Two sons of deceased, Norman and Huston, came out to the car. Defendant, who did most of the talking, inquired about the man who vaccinated hogs and when he would return. The boys promised to let defendant know so he could have his hogs vaccinated. They had more conversation about hogs. Then defendant asked where their father was, and the boys told him that he had gone to Plant City with some beef. The boys said defendant also inquired as to when deceased would be back and whether he was alone.

After this visit was over the occupants of the car returned to the home of defendant. Upon their arrival there, it was suggested by James Benton, one of the occupants of the car, that they go to Charlie Johnson's to get his cap, as he intended going to Fort Myers the following day and would need it, and that they hunt rabbits on the way.

After Benton got his cap at Charlie Johnson's, the occupants in the car started back towards defendant's house, when they met deceased in his Ford 'pick-up' truck. As their car passed that of deceased, defendant said, 'Hello, Mr Walker'; and Walker answered, 'Hello, Mr. Rowe.' Then deceased said he wanted to see defendant and told him to stop at the intersection of the road leading off to deceased's house.

When both cars got to the intersection and stopped, defendant and deceased both exchanged words of apparently friendly greeting to each other. Deceased then said 'wait a minute until' he turned off the lights on his truck, and walked back to his truck.

When deceased reached the truck, he turned off the lights and then took out his shotgun. The state witness Mr. Simmons testified that both defendant and deceased were getting their respective guns out of their cars at about the same time that defendant had previously told Mr. Simmons that there might be trouble at that place; that when deceased had his gun about two-thirds of the way out of his truck, defendant alighted from his car with gun, made one step, and shot at Walker once, then got closer and shot at Walker a second time. The defense witnesses Mrs. Simmons, Benton, and defendant said that after deceased had switched off the lights on his truck, he got his shotgun and, after declaring he now had defendant where he wanted him, fired at defendant but missed him; that defendant then ran back to his car, got his shotgun, and fired at deceased and killed him, while deceased was attempting to reload his gun.

There was evidence that two of defendant's horses and some of his hogs had died, and further evidence that deceased might have been the cause of it, and that deceased was trying to run defendant away from that neighborhood. There was evidence that deceased had made a threat on the life of defendant, though it was not communicated to defendant.

There was conflicting testimony as to whether the empty shell, found directly behind deceased's truck, came from defendant's gun or from that of deceased, or whether it was possible for it to come from the gun of deceased.

The first error assigned is the overruling of objection to the question asking the size of deceased's family. The record shows that the witness had answered the question before counsel had finished making his objection thereto. No motion to strike was made as to the answer.

The fact that deceased may have had a family is wholly immaterial, irrelevant, and impertinent to any issue in the case. Melbourne v. State, 51 Fla. 69, 40 So. 189. It was held irrelevant in State v. Broughton, 158 La. 1045, 105 So. 59. Also see Fisher v. State, 23 Ala. App. 544, 129 So. 303; Thomas v. State, 18 Ala. App. 268, 90 So. 878.

'The purpose of an objection being to prevent a question from being answered until after a ruling of the court can be obtained, it is well settled that it is too late to interpose an objection after the question has been answered.' 26 R. C. L. 1046, § 55, and cases there cited.

The second error assigned is the overruling of objection to the question propounded to Sheriff James P. Davidson asking whether the empty shell found behind deceased's truck had been ejected from deceased's gun. The witness gave this answer to the question:

'A. Had that shell been ejected from the gun unbreached there, it would have been nearer the front wheel; it was in the opposite direction from where it would have been had it been ejected from this gun.'

Counsel stated in his objection that the witness was assuming that at the time the shell was ejected, the gun was in the same position as when witness found it. No motion to strike was made as to the answer given. It was important to know from whose gun the empty shell came. If it came from deceased's gun, the defendant might have fired in self-defense; whereas, if it came from the gun of defendant, it might be a case of murder in the first degree.

This assignment is open to the same objection as the first one, in that no motion to strike was made after the answer was given. However, in the case of Blackwell v. State, 76 Fla. 124, 79 So. 731, 739, 1 A. L. R. 502, where the trial court permitted the sheriff to testify that he believed sufficient evidence had been adduced to convict defendants and no timely objections had been made, the court said:

'Although there was no objection by the defense to this opinion of the sheriff that there was sufficient evidence before the jury to convict the prisoners, it was so flagrantly improper that it should have been stricken by the court of its own motion. But it remained in, and the jury carried with them into the jury room the opinion of the sheriff, who is a man of great influence in the county, that there was sufficient testimony before them upon which to find a verdict of guilty.'

So in this case the sheriff's opinion testimony that the shell was not ejected from deceased's gun was inadmissible.

The third assignment of error is based on the court's refusal to allow James Benton to answer the question as to whether or not the last words of deceased were threatening. The trial court ruled correctly. The witness had testified what the last words of deceased were, and this question sought a conclusion of the witness as to the threatening nature of those words, which conclusion the jury could determine for themselves.

The defense attorney was apparently trying to ask whether the attitude of the deceased was threatening when those words were uttered. Such a question might have been proper. Later the witness substantially testified to the same matter; so no harm could have resulted to defendant. See Branch v. State, 96 Fla. 307, 118 So. 13.

The fourth assignment of error is based on the court's refusal to permit defendant to testify as to whether or not he had any feeling that in case he did not protect himself he might be killed by Mr. Walker. The defendant's belief as to the necessity of killing is material. See Lane v. State, 44 Fla. 105, 32 So. 896. Such belief must be that the danger was imminent. Ward v. State, 75 Fla. 756, 79 So. 699. It is error to exclude such testimony. However, as the same witness later testified as to that particular matter, any error in excluding it was thereby rendered harmless. Baker v. State, 30 Fla. 41, 11 So. 492.

The fifth assignment contended that it was error to admit in evidence shotgun...