Walker v. State

• Decision Date: 31 July 1894
• Citation: 34 Fla. 167,16 So. 80
• Parties: WALKER et al. v. STATE.
• Court: Florida Supreme Court

16 So. 80

34 Fla. 167

WALKER et al. v. STATE.

Florida Supreme Court

July 31, 1894

Error to circuit court, Leon county; John W. Malone, Judge.

Mack Walker and Kenneth Walker were convicted of manslaughter, and bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. A ruling of the court below upon the competency of a witness must be duly excepted to in said court, or it cannot be considered here.

2. A wife is permitted, in this state, to testify for or against her husband, in a criminal case.

3. Where a witness is called to testify about an occurrence happening so short a time before the homicide as to be practically a part of the same difficulty, it is error to exclude the testimony.

4. In an indictment for murder, where the wound was an incised one it is not necessary to state the dimensions of the same.

5. An indictment for murder, which alleges the mortal wound to have been given with a knife, and to have been inflicted 'in and upon the body' of the deceased, is in that respect sufficient. It is not necessary to state upon what particular part of the body the wound was inflicted.

6. In that portion of an indictment for murder stating the part of the body upon which the mortal wound was inflicted, it is sufficient to say that it was upon the body of the deceased. As thus used, the word 'body' has a well-understood ordinary meaning. It is the trunk of the human frame distinguished from the head and the limbs. It is that portion which, excluding the arms, lies between the upper part of the thighs or hips and the neck.

COUNSEL E. M. Hopkins, for plaintiffs in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

LIDDON C.J.

The plaintiffs in error were indicted in the circuit court of Leon county for the murder of one Wiley Bentley. The form of the indictment was against Mack Walker as principal in the first degree, and Kenneth Walker as principal in the second degree. A trial was had at the spring term, 1894, and both defendants were convicted of manslaughter.

Five assignments of error are made. We consider them in numerical order. The first and second assignments, which we consider together, are as follows: (1) The court erred in refusing to allow Phyllis Walker, the wife of one of the defendants, Kenneth Walker, to testify in behalf of her husband; (2) the court erred in ruling in regard to Phyllis Walker, 'I exclude anything concerning her husband.' It appears from the record that this witness, when offered, was objected to by the state attorney on the ground that she was the wife of one of the defendants. The court said, 'She can testify in reference to the other defendant.' No exception was taken to this ruling. If there was error in this ruling, if it can be called a ruling, it can only be made available by an exception duly taken. Such exception not being taken, we cannot consider it. Coleman v. State, 17 Fla. 206.

The third assignment of error, while it does not clearly express what was intended, yet indirectly refers to the ruling of the court excluding testimony of Phyllis Walker, offered by the defendants. Inquiry was made of this witness about the presence of several of the Bentleys, including the deceased, at the house of Kenneth Walker, one of the defendants, on the morning of the killing, and a very short time preceding the same. Witnesses on the part of the state had been examined fully about the same circumstances. The witness, as stated, was the wife of the defendant Kenneth Walker. The state attorney objected to the testimony because one of the defendants, Mack Walker, was not present at the time of the occurrence about which she proposed to testify. The court excluded the testimony. In so doing it clearly acted upon the presumption that a wife, in a criminal case, cannot testify for or against her husband. According to a recent decision of this court (Everett v. State, 33 Fla. 661, 15 So. 543), this was error, and she should have been permitted to testify. The occurrence about which the witness was called upon to testify was also so short a time before the killing occurred as to be practically the beginning of the same difficulty. Therefore, it was part of the res gestae. It was error, as to both of the defendants, to exclude this testimony.

The fourth assignment of error is based upon the refusal of the court below to grant a new trial. The first two grounds were (1) that the verdict was contrary to law; and (2) contrary to the evidence; and (3) the refusal of the court to permit the wife of one of the defendants, Kenneth Walker, to testify in his behalf. No particular reason is assigned why the verdict was contrary to law. As the case must be remanded for a new trial in the circuit court, it is not proper or necessary that we consider the sufficiency of the evidence to support the verdict rendered.

The fifth error assigned is that the court erred in overruling defendants' motion in arrest of judgment. This motion was upon grounds as follows: (1) The indictment does not state in what part of the body of the deceased, Wiley Bentley, Sr., the mortal wound was inflicted; (2) the indictment does not state the dimensions of the wound which it is stated caused the death of Wiley Bentley, Sr. As it can be more easily disposed of, we will consider the last ground first. This court has decided (overruling the case of Keech v. State, 15 Fla. 591) that in a murder case it is not necessary to state in the indictment the dimensions of the incised wound which caused the death. Hodge v. State, 26 Fla. 11, 7 So. 593. The indictment in this case clearly states the dimensions of the wound,--of the breadth of one inch, and depth of four inches. The motion, in this respect, is not true in point of fact.

We next consider the ground that the indictment does not show upon what part of the body of the deceased the mortal wound was inflicted. Judge Randall says in the same case of Keech v. State, 15 Fla., text p. 608, in an uncertain way: 'It is also insisted that the indictment is defective in that it does not show upon what part of the body of the deceased the wound was inflicted. We believe it is uniformly held in the English books that the part of the body in which the deceased was wounded should be particularly stated.' The language of the indictment is not quoted in the opinion in the Keech Case. We have inspected it in the transcript of the record of the case among the files of the court. The indictment in that case, in the portion of it stating the wounding of the deceased, said that the defendant, 'with a certain pistol, loaded,' etc 'shot off and discharged,' etc., 'did strike, penetrate, and wound the said Ellen Wells.' The indictment in the present case is much better. It alleges that the defendant, 'with a certain knife,' etc., 'the said Wiley Bentley did strike and thrust, giving to the said Wiley Bentley, then and there, with the knife aforesaid, in and upon the body of him, the said Wiley Bentley, one mortal wound,' and gives the dimensions of the wound. We think the indictment is sufficient. True, there are some old English decisions, and some...