Sylvester v. State

• Decision Date: 15 July 1903
• Citation: 35 So. 142,46 Fla. 166
• Parties: SYLVESTER v. STATE. [*]
• Court: Florida Supreme Court

35 So. 142

46 Fla. 166

SYLVESTER v. STATE. ^[*]

Florida Supreme Court

July 15, 1903

Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

William Sylvester was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. In a trial for murder, a previous difficulty between the defendant and the deceased may be given in evidence to show the feeling existing between them, but testimony as to the merits of such controversy is not admissible.

2. Error in excluding a question propounded to a witness is without injury where the question is afterwards asked without objection and answered by the witness.

3. A witness, who had testified that the defendant seemed to be excited, was asked on cross-examination whether the defendant's manner was different from that of other men with families dependent upon them suddenly losing a job. Objection to this question was properly sustained.

4. A witness who heard only a part of a relevant conversation may testify to such part.

5. The propriety of a ruling of the court in excluding evidence where no exception is taken to the ruling, will not be considered.

6. Previous contradictory statements of one's own witness are admissible in evidence for the purpose of impeachment only when the witness is adverse.

7. A witness who was neither unwilling nor adverse was asked by the party calling him, for the purpose of refreshing his memory, whether he had not made certain statements on a previous examination. No effort was made to direct his mind to the former examination in a less leading or suggestive way, nor did it appear that such effort would have been fruitless. There was no error in sustaining an objection that the examination was leading.

8. When it becomes necessary or proper in refreshing the memory of a witness, neither unwilling nor adverse, to present to him his testimony given on a former examination, the court may exercise a sound discretion in preventing this being done in a way which may lead the jury to infer that certain testimony had been given by the witness, when that fact cannot properly be shown in evidence before them.

9. It is admissible, as affecting the credibility of a witness, to show that he had come from a distance, without subpoena, to testify, and that his fare was paid by counsel of the party producing him.

10. It was not improper, in cross-examining a witness who had come from a distance to testify, and who said he took no more interest in this case than in any other, to ask whether he meant to tell the jury that it was possible for him, not taking any interest in the case, to come and testify without being summoned.

11. It is not improper to ask an impeached witness, for the purpose of identifying him to the jury, when recalled for further examination on a subsequent day, whether he is the same witness as to whom the impeaching testimony had been given.

12. It is not error to permit a detective, summoned as a witness but not examined, to remain in the courtroom during the trial.

13. The dangerous character of the deceased cannot be shown by testimony that a certain witness was not willing to work under him.

14. A state witness was asked on cross-examination what he had told another witness for the state he was going to testify in the case. This question was not admissible, as tending to show that the second witness had suggested to him his present testimony.

15. Testimony as to the manner of a person is not inadmissible as calling for the opinion of the witness.

16. Where similar evidence tending to impeachment is shown as to two witnesses, and there is further testimony as to one that he said he would lie for the defendant, it is not reversible error for counsel in argument to say that the credibility of one might be judged by what was shown of the other.

17. It is not reversible error for the court to refuse to interfere with the argument of counsel because it is illogical, or not based on deductions reasonably inferable from the facts.

18. Where the court charges the jury that the defendant is entitled to the benefit of every reasonable doubt as to his guilt, it is not necessary to repeat the caution with each special instruction given.

19. Instructions requested by the defendant, which have been given in substance in the general charge of the court, may properly be refused.

20. It is not error to refuse to give an instruction as to the right of self-defense which would justify homicide, where there is such appearance of danger as would lead a reasonable prudent, and cautious man to believe the danger to exist, whether the defendant so believes or not. Carter, J., dissenting.

21. Instructions upon the right of self-defense, where the evidence warrants it, should contain the qualification that the defendant, to avail himself of that defense, must not have been the aggressor at fault in intentionally bringing on the difficulty in which the homicide occurs. Carter, J., disssenting.

22. A judgment of conviction of a felony will not be reversed because the state attorney, after conducting the examination of witnesses and making the opening argument for the state, with the knowledge of the defendant, and without objection from him, absents himself from the courtroom during a portion of the arguments of defendant's counsel and of the counsel employed to assist the state.

23. Judgment will not be reversed because about 20 of 50 jurors in attendance on the court were from a single precinct, in which the prosecuting attorneys are shown by affidavit to have much personal influence, where no objection was made to the jury nor array until after verdict.

24. Objections to the regularity of the procurement of jurors, neither presented in the lower court nor assigned as error here, will not be considered.

25. Matters apparent upon the record, but not assigned as error, and not jurisdictional or fundamental in character, need not be considered.

COUNSEL Alex. St. Clair-Abrams, Benj. S. Liddon, and R. H. M. Davidson, for plaintiff in error.

J. B. Whitfield, Atty. Gen., A. G. Hartridge, State Atty., and John L. Doggett, for the State.

OPINION

MAXWELL J.

This case was argued before Division B, but, there being a difference of opinion among the members of that division, was referred to the court for decision.

The plaintiff in error, William Sylvester, charged with the murder of one Edward Burton was convicted of murder in the first degree, and sentenced to death. From this judgment he comes by writ of error to this court.

I. Burton was the master mechanic in the shops of the Florida Central & Peninsular Railroad Company in Fernandina, and Sylvester a mechanic employed in the shops. The day before Burton was killed a difficulty had occurred at the shops between union and nonunion men. Butterfield, a state witness, testified that on the evening before the killing Burton taxed Sylvester with being concerned in this difficulty. This Sylvester denied, and Burton replied, 'It is a damned lie; he did have a hand in it.' The defendant's counsel thereupon asked the witness, 'Do you know whether he did or not?' Objection to this question was sustained by the court, and this ruling is assigned as error.

It was competent for the state to introduce evidence of this difficulty between the defendant and the deceased as tending to show the relations existing between them, and the animus or motive which may have influenced each in the difficulty of the following morning, which resulted in Burton's death. But this would not warrant an examination into the merits of that controversy, or into the truth or falsity of such charges or counter charges as may have been there made, and evidence upon this point was properly excluded. People v. Thomson, 92 Cal. 506, 28 P. 589; Williams v. State, 69 Ga. 11, text, 31; Commander v. State, 60 Ala. 1; McAnally v. State, 74 Ala. 9; Bohlman v. State (Ala.) 33 So. 44; Martin v. Commonwealth, 93 Ky. 189, 19 S.W. 580; Commonwealth v. Silk, 111 Mass. 431; Pinckard v. State, 13 Tex.App. 468; State v. Sorter, 52 Kan. 531, 34 P. 1036.

II. The second assignment of error is based upon the refusal of the circuit judge to permit the defendant to ask a witness (Holden) upon cross-examination whether a conversation with the defendant, to which he had testified, occurred before or after Burton was shot. This inquiry was made of the witness several times during the cross-examination, and he four times reiterated positively his testimony given on direct examination that it had occurred before the shooting. This sufficiently cured any error in the first exclusion of the question.

III. A short time before Burton was killed, as a result of their differences of the evening before, Sylvester, by Burton's order, was discharged from the machine shops where he was employed. Hernandez, foreman of the shops, testified that Sylvester came to him to ask why he was not permitted to work, and that he seemed to be excited. Upon cross-examination, after showing that Sylvester had a family whom he supported by his labor, the defendant's attorney asked the witness the following question: 'Was his manner any different from that of other men with families dependent upon them suddenly losing a job?' Objection to this question was properly sustained by the court. It was competent to ascertain what the manner of the defendant was, as that it showed chagrin, or anger, or apprehension ( Higginbotham v. State, 42 Fla. 573, 29 So. 410, 89 Am. St. Rep. 237; Mitchell v. State, 43 Fla. 188, 31 So. 242), for this would aid in determining his state of mind and the motives which actuated him in his subsequent conduct. But how his manner would compare with the witness' idea of how other men would appear who had suddenly...