Simmons v. State

• Decision Date: 09 October 1893
• Citation: 13 So. 896,32 Fla. 387
• Parties: SIMMONS v. STATE.
• Court: Florida Supreme Court

13 So. 896

32 Fla. 387

SIMMONS v. STATE.

Florida Supreme Court

October 9, 1893

Error to circuit court, Volusia county; John D. Broome, Judge.

Charles Simmons, having been convicted of murder, brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. The general rule, that a witness cannot be impeached by proof of inconsistent statements without first laying the proper foundation for the introduction of such evidence, applies to written statements, or testimony reduced to writing, and signed by a witness before a committing magistrate; but before such testimony can, for the purpose of impeachment, be read to the jury, it must be produced and shown to the witness, and his attention called to his contradictory statements contained in the written evidence and his oral testimony. Without showing the witness the written evidence and allowing him to read it, he cannot be cross-examined as to its contents with a view of impeachment.

2. In cases of murder, according to strick rule, it seems that the homicidal act, or the act which is the efficient cause of death, must be alleged to have been done with a premeditated design to effect the death of the deceased; and, where this is not done the indictment is defective.

COUNSEL J. D. Broome, Jr., for plaintiff in error.

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

OPINION

MABRY J.

The plaintiff in error was indicted by a grand jury in Volusia county for the murder of one Blue Steel, and, after arraignment and trial, was found guilty by a petit jury of the offense for which he stood indicted.

Omitting the formal parts of the indictment, it charges that the defendant, Charles Simmons, on the 16th day of October, 1892, in Volusia county, Fla., 'with force and arms, at and in the county of Volusia aforesaid unlawfully, and from a premeditated design to effect the death of a man named Blue Steel, whose further name is to the grand jury unknown, in and upon said Blue Steel, whose further name is unknown to the grand jurors, and assault did make, and a certain pistol, loaded with gunpowder and one leaden bullet, and by the said Charles Simmons had and held in his hand, he, the said Charles Simmons, did then and there unlawfully and from a premeditated design to effect the death of the said Blue Steel, whose further name is to the jurors unknown, shoot off and discharge at and upon the said Blue Steel, whose further name is to the jurors unknown, thereby and by thus striking the said Blue Steel, whose further name is to the grand jury unknown, with the said leaden bullet inflicting on and in the right side of the head of the said Blue Steel, whose further name is to the jurors unknown, one mortal wound of a depth and breadth to the jurors unknown, of which mortal wound the said Blue Steel, whose further name is to the grand jurors unknown, then and there instantly died. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said Charles Simmons, in the manner and by the means and from a premeditated design to effect the death of the said Blue Steel,' etc., 'him, the said Blue Steel, did kill and murder, against the form of the statute,' etc.

After having a motion in arrest of judgment and for a new trial decided adversely to him, plaintiff in error sued out a writ of error from the final judgment entered, and brings the record before us.

To maintain her case the state introduced as a witness one Frank Battle, who detailed the circumstances of the death of the deceased, Blue Steel. The scene of the homicide was railroad camp, and time, the early part of the night. The witness Battle did not stay in the camp, but was at the time on a visit to his brother, who had a tent there. The witness stated that there was a crowd of men about 100 yards from his brother's tent, and a man called Sunny White got shot in this crowd, and ran up to the tent, with blood coming from the side of his head. Another party, named Brown, from whose hands witness managed to jerk a shotgun said, 'Find out the right man; shoot in the crowd,' and another man (Garner) said, 'Must I shoot in the crowd?' and fired into the crowd. Garner and another man (Jackson) fell in the mouth of the tent, and at that time Simmons, the accused, came up with his pistol in his hand, waving it about. The deceased said to the accused: 'Put your pistol in your pocket. Two men are shot down here. Put your pistol in your pocket.' 'He goes up to Charley, and catches hold of him, and tells him, 'Put your pistol in your pocket;' and Charley says, 'You son of a bitch, I will shoot your brains out,' and he shot him right through the head.' On cross-examination the witness was asked if the deceased did not try to take the pistol out of the hands of the accused, and answered that he did not. He said that the deceased went up to the accused and told him to put the pistol in his pocket. The witness was then asked if he did not testify on a preliminary hearing of the case before Justice Nelson in New Smyrna, and answered that he did. He was then shown testimony taken on a preliminary hearing before Justice Nelson, and stated that it was the same testimony that he gave. He also said that he put his name to and swore to the testimony, and thought that the mark to the testimony shown him was his, but he could not read. The witness was then asked if he did not testify that the deceased tried to take the pistol from the hands of the accused, and was not able to do so, and answered: 'No, sir; I testified that Blue Steel came up to Charley, and caught hold of him, and told him to put his pistol in his pocket, and Charley shot him.' On being further asked, on cross-examination, if he did not swear on the preliminary examination that the deceased tried to take the pistol out of the hands of the accused, but was not able to do so, stated that if he did he had no recollection of it. No objection was made to the questions propounded to the witness as to what he did swear to on the preliminary examination before the justice.

When the time came for the accused to put in his testimony he offered as evidence the sworn statement of the witness signed before the justice of the...