White v. State

Decision Date21 May 1910
Citation52 So. 805,59 Fla. 53
CourtFlorida Supreme Court
PartiesWHITE v. STATE.

In Banc. Error to Circuit Court, Jackson County; J. E. Wolfe Judge.

J. V White was convicted of murder, and brings error. Reversed and new trial awarded.

Syllabus by the Court

SYLLABUS

Great latitude is to be allowed in the reception of indirect or circumstantial evidence. It includes all evidence of an indirect nature, whether the inferences afforded by it be drawn from prior experience, or be a deduction of reason from the circumstances of the particular case, or of reason aided by experience. The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the exclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry or to assist, though remotely, to a determination probably founded in truth.

In a prosecution for murder, evidence as to the particulars or merits of a previous difficulty between the defendant and the deceased, not within the issues being tried, is not admissible.

Where a homicide is shown, and an issue of self-defense is made evidence is admissible as to the fact of a hostile meeting between the defendant and the deceased shortly before the fatal encounter, and also as to the apparent feeling of the parties towards each other when they separated, since such circumstances may tend to show the probable attitude of friendliness or hostility of each towards the other when the fatal meeting occurred.

COUNSEL Price & Lewis, J. W. Kehoe, E. F. Davis, and Milton Pledger, for plaintiff in error.

Park Trammell, Atty. Gen., Paul Carter, and Reeves & Watson, for the State.

OPINION

WHITFIELD, C.J.

This writ of error is to a judgment of conviction of murder in the second degree. The homicide occurred on a street at night with no eyewitnesses. The points that will be here discussed relate to the admissibility of circumstantial evidence.

'Great latitude is to be allowed in the reception of indirect or circumstantial evidence. It includes all evidence of an indirect nature, whether the inferences afforded by it be drawn from prior experience, or be a deduction of reason from the circumstances of the particular case, or of reason aided by experience. The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth.' Mobley v. State, 41 Fla. 621, 26 So. 732; Reynolds v. State, 52 Fla. 409, 42 So. 373.

In a prosecution for murder, evidence as to the particulars or merits of a previous difficulty between the defendant and the deceased, not within the issues being tried, is not admissible. Sylvester v. State, 46 Fla. 166, 35 So. 142; 4 Elliott on Ev. par. 3036.

But where a homicide is shown and an issue of self-defense is made, evidence is admissible as to the fact of a hostile meeting between the defendant and the deceased shortly before the fatal encounter, and also as to the apparent feeling of the parties towards each other when they separated, since such circumstances may tend to show the probable attitude of friendliness or hostility of each towards the other when the fatal meeting occurred. See Sylvester v. State, supra; 4 Elliott on Ev. par. 3036; 21 Cyc. 894, 915; 21 Am. & Eng. Ency. Law (2d Ed.) 217; White v. State, 30 Tex.App. 652, 18 S.W. 462. See, also, Lester v. State, 37 Fla. 382, 20 So. 232.

An issue of self-defense under the plea of not guilty was made when the defendant testified that, as he was going home about 10 o'clock at night, he unexpectedly saw the deceased approaching him within six or more feet with what he supposed was a weapon in a threatening attitude. After ascertaining it was the defendant, and saying, 'Well, we can settle this matter right now, and will settle it right now,' whereupon defendant shot deceased five times; the deceased advancing on the defendant in a threatening manner when each shot was fired, and the defendant believing as he fired each shot that his life was in imminent danger. Testimony was admitted of a meeting of the defendant and deceased in the presence of a friend of the defendant, about an hour before the homicide, at which time the defendant struck the deceased once with his fist.

The defendant was then asked, 'What commenced the altercation between you and him there and caused to blow to pass?' This question was objected to by the state, and was properly excluded by the court, because it clearly relates to the merits of a previous encounter that was not a part of the res gestae and was not within the issues being tried.

The bill of exceptions shows that, after the above-quoted question was excluded, the following proceedings were had:

'Mr. Price: * * * We further proffer to prove, in response to the same question, that he (Dr. Alexander) was leaving the office, having been let out of the office by the defendant, and the defendant told Dr. Alexander that it was his purpose to publish him to the people of Marianna publicly the next morning, and that the last thing that Dr. Alexander said before leaving and the last words that he said to the defendant before the meeting just preceding the shooting was: 'Jim, for God's sake, don't do that. It will ruin me here in Marianna.'
'Mr. Kehoe: After having made that proffer, and the court having ruled on it, we again except.'

The same testimony had been offered and excluded and the ruling excepted to before the defendant testified.

Treating the above testimony as having been properly offered, and as having been excluded by the court and an exception noted, its admissibility will be considered.

This proffered testimony does not go to the merits of the altercation at the prior meeting. It does not disclose why the intention to publish was formed, or whether such action was justified; but it tended to show the feeling of the parties towards each other at the close of the previous interview, and was admissible as tending to explain the attitude of each at the fatal meeting as to which the defendant testified. Any circumstances tending, 'even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination, probably founded in truth,' of the defendant's testimony as to the attitude and action and words of the deceased at the fatal meeting, are admissible under the rule announced by this court as quoted above. This testimony, taken with other evidence, might be a basis for legitimate argument favorable to the defendant; the credibility and probative force of it being primarily for the jury to determine. Under the broad rule above quoted, and over the defendant's objection, the court had admitted testimony that after the first meeting, and not in the presence of the defendant, the deceased had asked a person where the friend of defendant, who was at the first encounter, lived; and it was shown that he lived near the place where the homicide occurred. From this the state could urge an inference by the jury that the deceased was at the place of the homicide on a peaceful mission, though he had not often been seen there, and though the defendant lived in the immediate vicinity.

Every circumstance not inherently improper that would tend to prove or to disprove the defendant's testimony of an assault by the deceased, that appeared to defendant to endanger his life, is admissible. Although in fact the deceased had only an umbrella in his hand when shot, the defendant is allowed to justify, if under all the circumstances he had reason to believe, and did believe, an assault was made by the deceased with a weapon that endangered his life. These circumstances include the defendant's knowledge of the feeling and attitude of the deceased towards him; and, in passing upon the reasonableness of the defendant's belief of his danger, the jury may be informed of the apparent attitude of the deceased towards the defendant at the close of an altercation an hour before. This does not go to the merits of the first encounter. It cannot be said that the excluded evidence could not reasonably have affected the verdict under the facts of this case.

For the error indicated, the judgment is reversed, and a new trial awarded.

TAYLOR, HOCKER, and PARKHILL, JJ., concur.

CONCURRING

PARKHILL J. (concurring).

I think the judgment of conviction in this case should be reversed because:

(1) The court erred in permitting the witness John Justice to testify that, upon the night of the homicide and a short time prior thereto, the deceased, not in the presence of the defendant, asked the witness where Malcolm Stephens lived, and that the witness, not in the presence of the defendant, gave the deceased directions to Malcolm Stephens' home.

(2) The court erred in admitting the testimony of George Farley as to what his sister told him the deceased said to her the night of and a short time before the homicide.

(3) The court erred in refusing to permit the witness Malcolm Stephens to answer the following question propounded by the defendant's counsel: 'State whether or not during the conversation there was any personal difficulty between the defendant and Dr. Alexander'--referring to the deceased at a time shortly before the homicide.

(4) The court erred in sustaining the objection by the state to the following question propounded by the defendant to the witness Malcolm Stephens: 'State whether or not in that conversation, or at any time, there was any statement made...

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