Vickery v. State
| Decision Date | 21 June 1905 |
| Parties | VICKERY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Escambia County; Bascom H. Palmer, Judge.
Joseph Vickery was convicted of manslaughter, and brings error. Reversed.
Syllabus by the Court
1. Questions relating to the credibility of a witness are material and proper on cross-examination, and the testimony thus sought may form the basis for impeaching the witness.
2. Statements made by the deceased four, five, or ten minutes after a fatal shooting as to who shot him, and whether or not the defendant shot him, are not a part of the res gestae when it is not shown what transpired between the shooting and the time stated, so as to make it clear that the supervening circumstances, including the statements inquired about, were all the product of and a part of the difficulty itself.
3. Declarations of a person shot, made four, five, or ten minutes after the shooting, which do not appear to have been the product of or a part of the difficulty, are not a part of the res gestae, and are properly excluded.
4. It is within the discretion of the trial court to refuse to allow all the witnesses to be sworn on voir dire before they are sworn as witnesses, as such a course might seriously impede the trial. If a witness is not competent to testify it may be disclosed when he is called to testify.
5. In a prosecution for murder, a charge that 'in this case there is no denial of the unlawful killing of I. J., but defendant set up as his defense that some other person than he did the shooting and killing; that he did not do it'--is erroneous, where there is a plea of not guilty, and the unlawful killing is not admitted by the defendant, as the presumption of innocence follows the defendant until his guilt is proven beyond a reasonable doubt.
6. The correctness of a charge on a higher grade of offense than that of which the defendant has been convicted becomes immaterial, and no error can be predicated thereon.
COUNSEL J. Emmett Wolfe (Geo. C. Danville and J. P Stokes, on the brief), for plaintiff in error.
W. H Ellis, Atty. Gen., for the State.
The plaintiff in error was indicted in the circuit court for Escambia county for murder, and Frank Morgan and Riley White were charged in the same indictment with being accessories to the murder. Upon the trial of Joseph Vickery, he was convicted of manslaughter, and brings this writ of error to a judgment sentencing him to imprisonment in the State Prison for the term of seven years.
An assignment of error is that the record does not show a legal and valid arraignment of defendant, and a valid and legal plea by defendant. The transcript shows the following record entry:
The entry sufficiently shows the arraignment of the defendant before the bar of the court, and also that the defendant in person pleaded not guilty to the indictment.
The record shows that the court in which the trial was had in Escambia county, in the First Judicial Circuit, was presided over by Hon. Bascom H. Palmer, who is judge of the Third Judicial Circuit, and it is contended that the record does not show by what authority Hon. Bascom H. Palmer presided over the court at the trial.
On motion of the Attorney General there has been filed here a certified copy of the order of the Governor, as entered on the minutes of the trial court, directing Hon. B. H. Palmer, judge of the Third Judicial Circuit, to hold the fall term of the circuit court of the First Judicial Circuit for the period of two weeks, in and for Escambia county, Fla., beginning from and including Monday, the 5th day of December, A. D. 1904. The trial was had during the time fixed in the executive order for Hon. Bascom H. Palmer to hold the fall term of the court in Escambia county, and the order was made pursuant to the provisions of the Constitution and laws of the state. Therefore the assignment fails.
The indictment alleges that the fatal shot was fired in Escambia county, Fla., and that the deceased died in Escambia county, Fla. The proof is that the deceased died at Cedartown, Fla. As a new trial will be granted in this case on another ground, it is not necessary now to determine whether or not the proof is sufficient, in view of the allegation in the indictment as to the place where the deceased died. See Roberson v. State, 42 Fla. 212, 28 So. 427; McKinnie v. State, 44 Fla. 143, 32 So. 786.
The denial of a motion for a new trial is assigned as error. Mrs Chancellor, a witness for the defendant, testified that she saw the shooting, and gave particulars as to what was done by those present, and on cross-examination denied that directly after the shooting she asked a Mr. White 'what was the trouble up there.' Mr. White was called, and testified that he saw Mrs. Chancellor and her daughter on the street about the time of the shooting; that as he went out of his gate they were going by. He was asked: 'As you reached them, will you state whether or not Mrs. Chancellor made any remark to you, or asked any questions?' This question was objected to by the defendant because its purpose was to impeach Mrs. Chancellor as to immaterial and irrelevant testimony given by her. The objection was overruled, and defendant excepted. This ruling is a ground of the motion for new trial, and it is insisted that testimony of Mrs. Chancellor on cross-examination which it was sought to impeach was not in cross of her testimony in chief, and that it was collateral, immaterial, and irrelevant. The purpose of the cross-examination was to show that, as Mrs. Chancellor asked what the trouble was just after the...
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White v. State
...the second degree, it becomes unnecessary for me to pass upon this assignment. Mathis v. State, 45 Fla. 46, 34 So. 287, and Vickery v. State, 50 Fla. 144, 38 So. 907. ninety-ninth assignment is based upon the refusal of the court to give the following instruction requested by the defendant:......
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Deparvine v. State
...melee, which ended in three deaths, was a spontaneous utterance of thoughts created by, or sprung out of, the fight); Vickery v. State, 50 Fla. 144, 38 So. 907, 908 (1905) (determining questions concerning a shooting were properly excluded because they lacked a showing that the hearsay stat......
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Williams v. State, 6586
...wound, unless the statement formed a part of the res gestae, or is admissible as a dying declaration.' (Emphasis supplied.) Vickery v. State, 50 Fla. 144, 38 So. 907, was a case strikingly similar in factual structure to the instant case. We quote from Justice Whitfield's opinion in Vickery......
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Salas v. People
...County, 123 Ga. 205, 51 S.E. 328; State v. Pugh, 16 Mont. 345, 40 P. 861; Territory v. Armijo, 7 N.M. 436, 37 P. 1113; Vickery v. State, 50 Fla. 149, 38 So. 907. Instinctive, voluntary, spontaneous words, said under the impulse of an event of which they form a part, are not hearsay. They ar......