Sims v. State

• Citation: 44 So. 737,54 Fla. 100
• Court: Florida Supreme Court
• Decision Date: 23 July 1907
• Parties: SIMS v. STATE.

44 So. 737

54 Fla. 100

SIMS v. STATE.

Florida Supreme Court, Division A.

July 23, 1907

Error to Circuit Court, Pasco County; Joseph B. Wall, Judge.

John D Sims was convicted of embezzlement, as a public officer, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where no objection is made at the trial to the admission of evidence, it is considered as received by consent, and objections, if any, to the evidence, are waived, and the appellate court will not ordinarily consider an assignment of error based on the inadmissibility under the rules of legal procedure of the evidence so admitted without objection.

General objections to the admission of evidence, without stating any grounds of objection, will not avail unless the evidence is not admissible under any circumstances.

Where objections to the admission of evidence at a trial are stated to be upon, and are confined to, particular grounds, no other ground of objection will ordinarily be considered by the appellate court; and if the particular grounds of objection are not well taken under the circumstances of the case, an assignment of error based thereon will be unavailing particularly where it appears from the record that no harm could have resulted from the admission of the evidence.

In a criminal prosecution for embezzlement, where a certified copy of a verdict and judgment in civil case against the defendant and others for the property was admitted in evidence over the specific objection of the defendant that there is no proof that the defendant 'was ever served with process or had his day in court,' and defendant 'asked that the whole record be introduced for the purpose of showing that the court struck the pleas in the civil suit,' the reception of such evidence is not erroneous on the ground of objection urged against it, since, if a plea was filed in the cause, it, to that extent, gave the defendant his day in court, and the judgment introduced recites that defendants were represented by counsel. If the striking of the pleas rendered the subsequent proceedings in the civil action illegal, it is immaterial as the introduction of the verdict and judgment was to show their existence, not their validity. There being no general or appropriate specific objection to the admission in evidence of the verdict and judgment in the civil action, and an exception to the ruling thereon, an assignment of error based on the inappropriate specific objection made cannot avail the plaintiff in error particularly when the offense charged is fully proven, and the verdict and judgment in the civil action were merely cumulative evidence.

A portion of a charge that: 'The defendant is entitled to every reasonable doubt arising from the evidence, or from the lack of evidence in the case; a reasonable doubt being such a doubt as a reasonable man would entertain, not a mere possible or sueculative doubt'--is not erroneous when taken with other portions of the charge that correctly state the law.

In a prosecution for embezzlement as a public officer, under the statute, it is not essential that a verdict of guilty should state the amount embezzled.

COUNSEL Geo. W. Dayton and Davis & Hampton, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

WHITFIELD J.

The plaintiff in error was convicted of embezzlement as a public officer in the circuit court for Pasco county, and took writ of error.

At the trial the state offered in evidence a certified copy of the verdict and judgment in the case of N. B. Broward, as Governor of the State of Florida, Plaintiff, v. John D. Sims and others, Defendants, wherein the plaintiff recovered of the defendants a judgment in a civil action at law. Counsel for the defendant objected to the introduction of the verdict and judgment in evidence 'on the ground that there is no proof that John D. Sims was ever served with process or had his day in court, and asked that the whole record be introduced for the purpose of showing that the court struck the pleas in the civil suit.' The objection was overruled, the verdict and judgment were admitted in evidence, the defendant excepted, and assigns the ruling as error.

It is urged that the admission of the verdict and judgment in a civil action in this criminal prosecution 'was fundamentally wrong and against every rule of evidence in criminal cases.' In support of this counsel cites State v. Bradnack, 69 Conn. 212, 37 A. 492, 43 L. R. A. 620; Black on Judgments, par. 592; People v. Beevers, 99 Cal. 286, 33 P. 844; Britton v. State, 77 Ala. 202.

It does not appear that a general objection was made to the admission in evidence of the verdict and judgment in the civil action. The objection was specifically confined to the ground stated above.

Where no objection is made at the trial to the admission of evidence, it is considered as received by consent, and objections, if any, to the evidence, are waived, and the appellate court will not ordinarily consider an assignment of error based on the inadmissibility under the rules of legal procedure of the evidence so admitted without objection. See Purdy v. State, 43 Fla. 538, 31 So. 229; Bishop v. Taylor, 41 Fla. 77, 25 So. 287; Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Tuten v. Gazan, 18 Fla. 751.

General objections to the admission of evidence, without stating any grounds of objection, will not avail unless the evidence is not admissible under any circumstances. Kirby v. State, 44 Fla. 81, 32 So. 836; Williams v. State, 45 Fla. 128, 34 So. 279; Thomas v. Williamson, 51 Fla. 332, 40 So. 831.

Appellate courts will review only the objections made in the trial court to the admission of evidence. No other objections will be considered. Brown v. State, 46 Fla. 159, 35 So. 82; Hoodless v. Jernigan, supra.

When objection to the admission of evidence is limited to a particular ground, objections on other grounds are thereby waived. 8 Ency. Pl. & Pr. 226; Elliott v. Howison (Ala.) 40 So. 1018.

Where objections to the admission of evidence at a trial are stated to be upon, and are confined to, particular grounds, no other ground of objection will ordinarily be considered by the appellate court; and if the particular grounds of objection are not well taken under the circumstances of the case, an assignment of error based thereon will be unavailing, particularly where it appears from the record that no harm could have resulted from the admission of the evidence. Kirby v. State, 44 Fla. 81, 32 So. 836; Hopkins v. State, 52 Fla. ----, 42 So. 52; Pittman v. State, 51 Fla. 94, 41 So. 385; Jacksonville, M. P. Ry. & Nav. Co. v. Warriner, 35 Fla. 197, 16 So. 898.

Before the objection to the admission in evidence of the verdict and judgment in the civil action was made, the defendant had without success attempted on the cross-examination of state witnesses to show that at a prior term of the court 'the state of Florida sued the bondsmen of J. D. Sims to recover the amount of John D. Sims' supposed defalcation.'

In making the single objection to the admission in evidence of the verdict and judgment in the civil...