Van Gallon v. State

Decision Date23 February 1951
Citation50 So.2d 882
PartiesVAN GALLON v. STATE
CourtFlorida Supreme Court

Hubbard & Carr, Miami, and Watkins & Cohen, Tallahassee, for appellant.

Richard W. Ervin, Atty. Gen., and Murray Sams, Jr., Asst. Atty. Gen., for appellee.

THOMAS, Justice.

At the trial of appellant, which culminated in a judgment of his guilt of murder in the second degree, the court allowed in evidence the written statement of the state's principal witness, made soon after the fatal shooting, although the witness was then present and testifying. The question arises whether the effect of the ruling was the bolstering of the testimony of the witness, which under the general rule may not be done in this way, or whether such procedure was justified because there was sufficient indication of impeachment by the appellant on the ground that there had been some late fabrication to meet the exigencies of the case.

We recognize the rule that a witness's testimony may not be corroborated by his own prior consistent statement and the exception that such a statement may become relevant if an attempt is made to show a recent fabrication. The exception is based on the theory that once the witness's story is undertaken, by imputation, insinuation, or direct evidence, to be assailed as a recent fabrication, the admission of an earlier consistent statement rebuts the suggestion of improper motive and the challenge of his integrity.

But we have carefully read that part of the record on which the state relies to justify the introduction by the state of the written statement and have not found there a sufficient showing, even of insinuation, to warrant the application of the exception; so we conclude that the rule applied and that the overruling of the defendant's objection to the statement was error.

The remaining question deals with the propriety of permitting the statement to be taken by the jury to their room when they retired to consider the case, but we do not feel obliged to answer it because it is not shown clearly in the record that this was done. The only evidence of it is an affidavit filed as an appendix to appellant's brief. We cannot sanction this method of supplementing a record.

Reversed.

SEBRING, C. J., and TERRELL and HOBSON, JJ., concur.

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37 cases
  • Carroll v. State
    • United States
    • Florida District Court of Appeals
    • 10 Diciembre 1985
    ... ...         The well established rule in Florida is that a witness' trial testimony may not be corroborated by his own prior consistent statement. Van Gallon v. State, 50 So.2d 882 (Fla.1951); McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982); Holliday v. State, 389 So.2d 679 (Fla. 3d DCA 1980); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979); Lamb v. State, 357 So.2d 437 (Fla. 2d DCA 1978); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977); ... ...
  • Taylor v. State
    • United States
    • Florida Supreme Court
    • 5 Junio 2003
    ... ... Gallon v. State, 50 So.2d 882 (Fla.1951) ... Because they are usually hearsay, "[i]n order to be admissible, prior consistent statements, 855 So.2d 23 like any other hearsay statements, must qualify under a hearsay exception." See Bradley, 787 So.2d at 743 ... However, prior consistent statements can be ... ...
  • Williams v. State
    • United States
    • Florida District Court of Appeals
    • 31 Marzo 1981
    ... ...         As a second issue on appeal Williams challenges admitting into evidence a prior consistent statement of the state's eyewitness. We find the statement admissible under Section 90.801(2)(b), Florida Statutes (1978) and Van Gallon v. State, 50 So.2d 882 (Fla.1951) ...         Williams also challenges the sentence of fifteen years probation upon condition that he serve eight years in the state penitentiary. We reverse on the authority of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980), ... ...
  • Sosa v. State, s. 35131
    • United States
    • Florida Supreme Court
    • 5 Noviembre 1968
    ... ...         The rule governing the admissibility of extrajudicial statements for the purpose of corroborating a witness' testimony was aptly stated by this court in Van Gallon v. State, 50 So.2d 882 (1951): ... 'The question arises whether the effect of the ruling was the bolstering of the testimony of the witness, which under the general rule may not be done in this way, or whether such procedure was justified because there was sufficient indication of impeachment by ... ...
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