O'steen v. State
| Decision Date | 13 December 1926 |
| Citation | 92 Fla. 1062,111 So. 725 |
| Parties | O'STEEN v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied March 5, 1927.
Error to Circuit Court, Suwannee County; M. F. Horne, Judge.
L Raymond O'Steen was convicted of manslaughter, and he brings error.
Affirmed.
On Rehearing.
Question of apprehension by defendant setting up self-defense, of imminent danger to life or great bodily harm, is for jury.
Reduction of original sentence of imprisonment in alleged absence of defendant on application of his counsel was not error of which defendant can complain.
Refusal to permit talesmen to be asked on voir dire whether they would give defendant's testimony same consideration as that of any other witness was proper (Rev. Gen. St. 1920, § 6080). The trial court properly refused, in a criminal case to permit counsel for defendant to propound to the talesmen upon their voir dire examination the following question 'Gentlemen, if the defendant should take the witness stand in this case and testify in his own behalf, would you give his testimony the same consideration that you would give to the testimony of any other witness testifying in the case?'
Question of apprehension by defendant setting up self-defense of imminent danger to life or great bodily harm is for jury; to justify killing in self-defense, circumstances as they appear to defendant must be such that reasonably prudent man would believe danger actual and necessity for killing real. Where, in a homicide case, the defendant sets up self-defense, the question of apprehension by the defendant of imminent danger to life or great bodily harm is for the jury, and the circumstances as they appear to the defendant must be such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necessity for taking life real.
It is not incumbent on rehearing for appellate court to consider assignments of error not argued on original hearing. It is not incumbent upon the appellate court, upon rehearing, to consider assignments of error not argued upon the original hearing, and hence abandoned by plaintiff in error.
Conviction on formal plea of not guilty will not be reversed because record does not expressly show formal arraignment. When a defendant comes or is brought into court and files a formal plea of not guilty to an indictment, it will be presumed that he had been formally arraigned thereon or had waived formal arraignment, and his conviction will not be reversed merely because the record does not expressly show a formal arraignment.
One convicted of felony must be personally present when arraigned, tried, and sentenced; record proper as distinguished from bill of exceptions should show personal presence of defendant when arraigned, tried, and sentenced for felony. It is indispensable to the legal conviction of a defendant on trial for a felony that he should be personally present in court when arraigned, when tried, and when sentenced, and the record proper as distinguished from the bill of exceptions should show such personal presence; presence by attorney is not sufficient.
Defendant's counsel should object and except, if defendant is not present when necessary, and see that record affirmatively shows his absence. If so fundamental a right of the defendant be violated, it is the duty of his counsel to make due objection and exception thereto, and to see to it that the record brought up on writ of error affirmatively shows such absence of the defendant.
Appellate court will not consider assignment of error unless action of trial court alleged as error affirmatively appears of record (Rev. Gen. St. 1920, § 2812). It has long been the general rule in this jurisdiction that this court will not consider an assignment of error unless the action of the court below alleged as error affirmatively appears of record; and added emphasis would appear to have been added to this rule by enactment of the statute appearing as section 2812, Rev. Gen. Stats. 1920.
Generally appellate court indulges all reasonable presumptions in favor of correctness of judgment or decree from which appeal was taken; burden of showing error affirmatively is on appellant or plaintiff in error alleging it; appellate court will not, to find reversible error, presume existence of facts as to which record is silent. It is a general rule of wide application that an appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment or decree from which the appeal was taken. Error is never presumed on appeal, but the burden of showing error affirmatively is upon the appellant or plaintiff in error who alleges it, and the appellate court will not, for the purpose of finding reversible error, presume the existence of facts as to which the record is silent.
Defendant and his attorney have duty to bring transcript of record to appellate court showing error for which he asks reversal was committed by trial court (Rev. Gen. St. 1920, § 2812). The plaintiff in error and his attorney are charged with the duty of bringing to the appellate court a correct and truthful transcript of the record in the trial court, and making it thereby to appear that the error, for the commission of which he asks that the verdict and judgment of the trial court be reversed, was committed by such court.
Error to cause reversal must have been prejudicial and injurious to party complaining (Rev. Gen. St. 1920, § 2812). This jurisdiction has long been committed to what is known as the 'orthodox English rule,' to the effect that error, when shown, in order to constitute reversible error, must appear to have been of such a character as to have been prejudicial and injurious in its tendency or effect upon the rights of the party complaining, rather than the 'Exchequer rule,' to the effect that an error of ruling, whether harmful or not, creates per se for the excepting party a right to a new trial.
Record held sufficiently to show arraignment and presence of defendant in person during trial and when verdict, judgment, and sentence for manslaughter were rendered and imposed. The record in this case examined and found to sufficiently show the arraignment of the plaintiff in error and his presence in person during the trial and when the verdict, judgment, and sentence were respectively rendered and imposed.
Reduction of original sentence of imprisonment in alleged absence of defendant on application of his counsel was not error of which defendant can complain. Where, as in this case, the record shows that the defendant was present when his original sentence of imprisonment was imposed by the court, and, by an amendment to the record, it was shown that, on application of counsel for the defendant, the court later, during the same term, made an order nunc pro tunc changing and reducing the original sentence of imprisonment from six years and one day to five years, and instructing the clerk to correct the minutes of the judgment and sentence accordingly, which was done, it not affirmatively appearing from the record whether the defendant was or was not present at the time such change was made, no reversible error of which the defendant could complain appears.
Edgar W. Waybright, of Jacksonville, for plaintiff in error.
J. B. Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
The plaintiff in error was indicted for murder in the first degree and convicted of manslaughter, and sentence of five years' imprisonment in the state penitentiary imposed. The case is brought before us on writ of error taken to this judgment of conviction.
Only two questions are presented by the assignments of error.
The first question is based upon the refusal of the court to permit counsel for plaintiff in error to propound to the talesmen upon their voir dire examination the following question:
'Gentlemen, if the defendant should take the witness stand in this case and testify in his own behalf, would you give his testimony the same consideration that you would give to the testimony of any other witness testifying in the case?'
If the court had permitted this question to be propounded to the prospective jurors, it would have tended to create the impression upon their minds that it was their duty to give the same consideration and weight to the testimony of the defendant that they would accord to the testimony of any disinterested witness or witnesses whose testimony might be introduced upon the trial. While section 6080 of the Rev. Gen. Stats. makes the defendant a competent witness in his own behalf, if he desires to testify, it was not designed to have any such effect as that contended for by counsel for plaintiff in error. While he is thus made a competent witness in his own behalf, it is certainly within the province of the jury to consider his testimony in the light of the fact that he is the defendant and as such interested in the result of the trial. It was held by this court, in the case of Blanton v. State, 52 Fla. 12, 41 So. 789, that a charge is properly refused which is so framed as to tend to mislead the jury into the belief that they are bound to lend the same credence to the testimony of the accused as a witness on his own behalf, as to that of any disinterested witness. It was there said, in the opinion by Mr. Justice Taylor:
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