Spires v. State
| Decision Date | 26 July 1905 |
| Citation | 39 So. 181,50 Fla. 121 |
| Parties | SPIRES v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; Charles B. Parkhill, Judge.
Tom Spires was convicted of crime, and brings error. Affirmed.
Syllabus by the Court
Evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not admissible, where the conditions attending the alleged occurrence and the experiment are not shown to be similar.
Whether or not evidence of experiments is admissible is, under the circumstances of each case, a preliminary question for the determination of the court.
It is within the judicial discretion of the trial court whether to permit experiments relevant to the issue to be made before the jury during the trial, or to refuse to permit them, such court having first to determine whether or not such similarity of circumstances and conditions has been made to appear to render said evidence competent; and an appellate court should decline to interfere with the ruling, unless an abuse of this judicial discretion is clearly made to appear.
The making of experiments by or in the presence of the jury is not favored by the courts. Evidence of this kind should be received with caution, and only be admitted where it is obvious to the court, from the nature of the experiments that the jury will be enlightened, rather than confused.
Where one of the errors assigned is based upon the overruling of the motion for a new trial, and said motion consists of a number of grounds, an appellate court will consider only such grounds as are argued.
Where there is evidence to support the verdict, it will not be disturbed or set aside by an appellate court, as being against the evidence, where its propriety depends entirely upon the credibility of conflicting witnesses.
COUNSEL E. L. Graves and Ellis F. Davis, for plaintiff in error.
W. H Ellis, Atty. Gen., for the State.
The plaintiff in error was indicted, tried, and convicted for the crime of rape, at a special term of the circuit court for Jackson county held in the month of April, 1905. He was sentenced to death, and from this judgment and sentence seeks relief here by writ of error.
Three errors are assigned, but the second is expressly abandoned which leaves for consideration only the first and third.
The first assignment is based upon the denial of the motion of the defendant for a new trial. We shall first consider the third assignment, which is as follows: 'The court erred in refusing to grant motion of defendant to try experiment in the presence of the jury in a dark room with the gun offered in evidence, to see whether the flash of the gun would make sufficient light to permit a person to recognize, as testified to by the prosecutrix.'
The bill of exceptions discloses that both the prosecuting witness and her mother testified that the crime was committed in the bedroom occupied by them, about 11 o'clock at night, after both witnesses had gone to bed; that the person committing the crime fired a gun while in the room, which sounded like a pistol. The prosecutrix testified that by the flash made by the firing of the gun she saw the features of the man in the room, and recognized him as the defendant, while the mother testified that the flash made sufficient light for her to tell a black man from a white man, but she was not looking at him at the time the gun fired, and did not see his face, though she heard his voice, and from that recognized him as the defendant. Both witnesses testified that it was a dark night; that the moon was not shining, and there were no stars; and that there was no light burning in the room. A gun was also introduced in evidence and identified as having been found in the defendant's house the morning after the crime was committed.
The counsel for the defendant requested
This was objected to by the state upon the ground that it had not been shown that the proposed experiment would take place under the same or similar conditions that existed on the night the crime was committed, when the gun was discharged, which objection was sustained by the court, to which ruling an exception was duly noted.
Thereupon the defendant introduced certain testimony, which we deem it unnecessary to set forth, in the attempt to show that the proposed experiment would be performed under the same or similar conditions, at the close of which the defendant renewed his motion. The state again objected upon the same ground, which objection was sustained, and an exception duly noted to the ruling.
As was said by this court in Lawrence v. State, 34 So. 87: 'Evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not admissible, where the conditions attending the alleged occurrence and the experiment are not shown to be similar.'
As to whether or not such similarity of circumstances and conditions has been made to appear is a preliminary question for the court to determine. 12 Amer. & Eng. Ency. Law (2d Ed.) 400, 409.
It is also within the judicial discretion of the trial court whether to permit experiments relevant to the issue to be made before the jury during the trial, or to refuse to permit them, and an appellate court should decline to interfere with the...
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