West v. State

• Decision Date: 06 March 1907
• Citation: 43 So. 445,53 Fla. 77
• Parties: WEST v. STATE.
• Court: Florida Supreme Court

43 So. 445

53 Fla. 77

WEST v. STATE.

Florida Supreme Court, Division A.

March 6, 1907

Error to Circuit Court, Sumter County; William S. Bullock, Judge.

Charles H. West was convicted of murder, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

When a map is offered in evidence, and it is found by the court to be a true representation of a subject about which testimony is being given, it is admissible to be considered by the jury, not as independent testimony, but in connection with other evidence, to enable the jury to understand and apply such evidence.

The testimony of a competent witness as to the difference in the sound of pistols of different calibers, and as to which of several pistol shots which he heard sounded to him to be the louder, is admissible; the credibility or probative value of the testimony being for the determination of the jury.

Evidence of self-serving declarations and conduct, such as statements and conduct of the defendant in his own favor, when they are not a part of the res gestae, or when they form no part of conversations or conduct introduced by the prosecution should not as a rule be admitted in a criminal prosecution as it is liable to mislead or confuse the jury, and for the reason that the admission of such evidence would give an opportunity to fabricate testimony for the occasion.

In a prosecution for murder, a charge which states to the jury that if they find from the evidence certain facts as to threats and demonstrations by the deceased, and adds 'and before such acts and demonstrations on the part of the deceased the defendant did not slap or kick at deceased then the defendant is not deprived of the plea of self-defense, if such plea is otherwise sustained by the evidence,' is erroneous, in that it in effect instructs the jury that the defendant is 'deprived of the plea of self-defense' if, before the threatening acts and demonstrations on the part of deceased, the defendant slapped or kicked deceased, without reference to whether or not such slapping or kicking was justified or lawful.

If the word 'having' is omitted from the following charge: 'If you find from the evidence in this case that the defendant, W., was the aggressor in a personal difficulty with R., in which difficulty the said R. lost his life, and having brought on the difficulty with a premeditated design to effect the death of the said R., the defendant, W., cannot avail himself of the plea of self-defense'--it will not be subject to the criticism that it invades the province of the jury by assuming it to be true that the defendant brought on the difficulty with a premeditated design to effect the death of R., when such fact is not conceded in the evidence.

While charges given or refused may be reviewed here, when properly presented with exceptions duly noted under the statute (sections 1089-1091, Rev. St. 1892; sections 1497-1499, Gen. St. 1906), or in the ordinary bill of exceptions, it is not necessary to present them in both ways. Where the transcript contains a large volume of irrelevant and unnecessary matter, costs may be visited upon the parties who unnecessarily incumber the transcript brought here on writ of error.

COUNSEL

W. F. Himes and J. T. McCollum, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

WHITFIELD, J.

The plaintiff in error was indicted in the circuit court for Sumter county for murder, and convicted of manslaughter. He was sentenced to five years' imprisonment in the state penitentiary. Writ of error was taken, and 68 errors are assigned. Only those deemed essential to a proper disposition of the case will be considered.

At the trial a map purporting to give the location of objects at and near the scene of the homicide was admitted in evidence over the objection of the defendant that it was not shown to be a correct and true map of the size, location, and relative positions of the objects shown on it. The court denied a motion to strike the map from the evidence, and also a motion to instruct the jury that they may consider the map in connection with the testimony of any witness; that they were not bound to take the map as absolutely correct, but that witnesses may explain their testimony by it. Exceptions were taken to all these rulings, and errors are assigned thereon. The court, in making its rulings, said: 'I want to say to the jury: They heard the testimony of the witness as to the correctness of the map. They can give it such credit as they think it is entitled to.'

In the case of Adams v. State, 28 Fla. 511, text 538, 10 So. 106, this court said: 'A map, plan or picture whether made by the hand of man or photography, if verified as a true representation of the subject about which testimony is offered, is admissible in evidence to assist the jury in understanding the case. They are frequently formally admitted in evidence, and, in so far as they are shown to be correct, are proper for the consideration of the jury, not as independent testimony, but in connection with other evidence, to enable the jury to understand and apply such evidence. * * * Maps or diagrams, shown to be correct representations of physical objects about which testimony is given, can be exhibited before the jury, and witnesses will be permitted to use them in explaining their evidence.'

If the map in this case was found by the court to be correct, the court should have instructed the jury that the map could be considered by them, not as independent testimony, but in connection with other evidence, to enable the jury to understand and apply such evidence. The correctness of the map should be determined by the court in the first instance. Ortiz v. State, 30 Fla. 256, 11 So. 611; Rawlins v. State, 40 Fla. 155, 24 So. 65; Hisler v. State (Fla.) 42 So. 692; Florida Southern Ry. Co. v. Parsons, 33 Fla. 631, 15 So. 338.

The testimony showed that the defendant and the deceased used pistols at the homicide about 6 o'clock in the morning that the deceased shot a 32-caliber pistol, and the defendant shot two pistols of 38-caliber. A witness for the state testified that he was a quarter of a mile away from the place of the homicide when it occurred; that he had handled a good many revolvers; that he had heard pistols discharged frequently for 25 or 30 years, and had shot many himself; that he heard the discharge of pistols about the time the homicide occurred; that he heard no other discharge of pistols there that morning. ...