Williams v. Dickenson

• Decision Date: 18 August 1891
• Citation: 28 Fla. 90,9 So. 847
• Parties: WILLIAMS v. DICKENSON.
• Court: Florida Supreme Court

9 So. 847

28 Fla. 90

WILLIAMS v. DICKENSON.

Florida Supreme Court

August 18, 1891

Error to circuit court, Jackson county; JAMES F. McCLELLAN, Judge.

Syllabus by the Court

SYLLABUS

1. Where a private individual has been damaged in person or property by the tortious act of another, which act amounts to a felony, the civil suit for the redress of the private wrong may proceed pari passu with the criminal prosecution, or the one may precede or succeed the other; or, if the criminal prosecution is never commenced at all, the failure to seek public justice is no bar to the private remedy. Neither is an acquittal or conviction upon the criminal charge any bar to the civil remedy.

2. The granting or refusal of an application for a change of venue is a matter placed by the statute within the judicial discretion of the court; and, while the exercise of such discretion is the subject of review by the appellate court it will not interfere unless there is a palpable abuse or grossly improvident exercise of the discretion imposed.

3. Under the provisions of section 107, p. 836, McClel. Dig the court may order the taxation and entry of a judgment for the costs accrued in a cause as a condition for the granting of an application for a temporary postponement of the trial.

4. A person convicted of the statutory offense of house-burning under the provisions of section 4, c. 1637, Laws 1868, is not excluded, under section 7, p. 991, McClel. Dig., from being a witness, or from giving evidence either in person or by deposition, in any suit or proceeding, unless such burning constituted the crime of arson in the technical sense in which that term was known to and recognized by the common law.

5. The well-recognized canon of construction is that, where legal terms are used in a statute, they are to receive their technical meaning, unless the contrary plainly appears to have been the intention of the legislature.

6. When a prima facie case is established, showing the existence of a conspiracy between two or more to do an unlawful act, the declarations, acts, or admissions of any of such conspirators touching the original concerted plan, and with reference to the common object, are, in contemplation of law, the acts and declarations of them all, and are, therefore, original evidence against each and every one of them.

7. Where a party producing a witness seeks to impeach him under the provisions of section 26, p. 518, McClel. Dig., in case such witness proves adverse, a large discretion is necessarily reposed in the trial judge as to whether the witness, who is before him, is so adverse to the party producing him as will authorize his impeachment under the statute.

8. An attempt to suborn a witness in a cause to give false testimony therein may be exposed in the trial of the cause whose issues were intended to be thus corruptly affected, and proof is admissible in such cause of such corrupt attempt in order to expose to the jury the immoral disposition in the party making the attempt to bring about a false and unjust result in the cause.

9. In charging juries the court should be careful not to trench upon the exclusive province of the jury in determining the credibility of particular witnesses, or the degree of credit or weight to be given to particular elements of the evidence. He may instruct them as to the rule, but not as to the weight, of the evidence. The weight to be given to the evidence, or to any phase or element thereof, is for the jury alone to determine. Charges that point out to the jury material features of the evidence, and that say such features 'are entitled to great weight,' are fatally erroneous.

10. Where a civil suit is brought to redress a tortious act that amounts to a crime, the defendant, as in a prosecution for the crime, is entitled to every reasonable doubt. The crime thus made the basis of a civil suit must be made out beyond a reasonable doubt, else the plaintiff is not entitled to a recovery. Schultz v. Insurance Co., 14 Fla. 73 cited and approved.

COUNSEL

John W. Malone, for plaintiff in error.

Liddon & Carter, for defendant in error.

OPINION

TAYLOR J.

Edward T. C. Dickenson, the defendant in error, instituted his action of trespass in the circuit court of Jackson county, in the first judicial circuit, on the 23d day of December, 1886, against Daniel W. Williams, the plaintiff in error; the declaration alleging that Dickenson was the owner and in possession of a certain frame building in Jackson county, to-wit, a gin-house, together with the fixtures usually belonging to a building in which cotton is ginned by steam-power, consisting of a water-tank; one cotton-press; one steam-engine, boiler, and machinery; two cotton-gins, with feeders and condensers; two gin-feeders and condensers; lots of cotton in the seed and lint; lots of cotton seed, bagging, and ties; tools, belting, shafting, and pulleys, etc. That the defendant Williams, on or about the 16th day of December, 1886, willfully and maliciously contriving and intending to injure the plaintiff, counseled, hired, caused, and obtained one Prior Wheeler to set on fire and burn the said building, fixtures, goods, and chattels, and by reason of such counseling, hiring, causing, and obtaining, the said Prior Wheeler, on the 16th day of December, 1886, did set on fire and burn the said gin-house, fixtures, goods, and chattels aforesaid, whereby they were burned up and totally consumed; and by said wrongful acts the plaintiff was greatly damaged by the loss and consuming of said property; and plaintiff was also greatly damaged by said wrongful acts, and by reason thereof suffered much annoyance and inconvenience and trouble, pain of mind and body. Damages in the sum of $10,000 was claimed. To this declaration the defendant pleaded the general issue, said plea being filed January 25, 1887. On the 31st day of May, 1887, by leave of the court, the defendant also filed the following plea in abatement: 'Now comes the defendant, and for a plea in abatement to plaintiff's action says that the cause of action set forth in plaintiff's declaration is a tort which amounts to a felony, and the defendant has been indicted therefor in the circuit court for Jackson county, and said indictment is still pending, and no trial has been had thereof; wherefore defendant prays that said suit be abated.' To this plea in abatement the plaintiff interposed a demurrer. This demurrer was sustained upon argument, and exception was taken. On the 28th day of September, 1887, after leave granted, the plaintiff filed an amendment to his declaration, whereby a second count was added to the original declaration, charging the defendant himself with the burning of said property. To this amended declaration the defendant pleaded also the general issue.

On the 30th day of May, 1887, at the term of the circuit court preceding the term at which the cause was tried, the defendant, Williams, filed his petition for a change of venue of said cause, upon the ground that the plaintiff, Dickenson, had an undue influence over the minds of the inhabitants of said county, and that he did not believe that he could get a fair and impartial trial in said county; 'that said Dickenson is a large merchant, centrally situated in the county, having customers in almost every section of the county, and has great influence over those customers; that the said Dickenson and his friends, as your petitioner is informed and believes, has been very active in trying to get up evidence in the case against your petitioner; and he, Dickenson, has been for several years a bitter enemy of your petitioner, and has sought, as your petitioner believes, to render your petitioner odious in the minds of the inhabitants of the county; that one of the counsel of said Dickenson in said suit, as well as the clerk of said court, both of whom are influential, have been for several years, as your petitioner is informed and believes, bitter enemies of your petitioner, in consequence of which facts your petitioner believes that he has been rendered so odious that he cannot expect a fair and impartial trial in said county.' This petition was sworn to by the defendant. On the 31st of May, 1887, this application for change of venue was heard, and the following order made in reference thereto: 'Now, at this day, came the parties by their attorneys, and the parties submitting evidence upon a motion of defendant for a change of venue, and after hearing all the evidence and argument of counsel, the court, being advised of its opinion, overruled and denied the motion for a change of venue,'--to which exception was taken. On the 15th of November, 1887, at the fall term of the circuit court, upon an application being made by the defendant for a postponement of the cause because of the absence of some one or more of his attorneys, the court made an order postponing the trial until the following day, the 16th of November, 1887, at the same time ordering the costs of this day's proceedings, so far as they relate to this cause, including this day's attendance of witnesses, to be taxed against the defendant; whereupon a formal judgment for said costs, amounting to $85.45, was then and there entered against said defendant in favor of the plaintiff. The trial of the cause was concluded on the 19th of November, 1887, and resulted in a verdict and judgment for the plaintiff in the sum of $2,850; the plaintiff before the retirement of the jury entering a nonsuit as to the second count included in the amended declaration. Motion for new trial was overruled and denied by the court, and from this judgment the defendant in the court below took a writ of error to this court.

The first error assigned is the order sustaining the plaintiff's demur...