Wilson v. State

• Decision Date: 11 October 1938
• Citation: 183 So. 748,134 Fla. 199
• Parties: WILSON v. STATE.
• Court: Florida Supreme Court

183 So. 748

134 Fla. 199

WILSON v. STATE.

Florida Supreme Court, Division B.

October 11, 1938

Error to Circuit Court, Okaloosa County; A. G. Campbell, Judge.

Jim Wilson was convicted of taking wire or fencing, and he brings writ of error.

Reversed and new trial granted.

COUNSEL Purl G. Adams and Lloyd C. Powell, both of Crestview, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A Norwood, Asst. Atty. Gen., for the state.

OPINION

PER CURIAM.

Plaintiff in error, Jim Wilson, was convicted in the Circuit Court of Okaloosa County, Florida, for a violation of Section 7383 C.G.L., and was sentenced to the State Penitentiary at hard labor for a period of four years, and on writ of error here seeks a reversal thereof in this Court. The lower court granted a motion for severance and the defendant was placed on trial alone. During the progress of the trial in the lower court, the defendant, while on the stand, denied that he at any time had ever taken or removed wire or other fencing from the land described in the indictment and had never been convicted in any court for taking wire or other fencing, nor had he ever plead guilty to such a criminal offense.

The record shows that the State Attorney cross-examined the defendant while on the stand about a criminal offense of which the defendant had been convicted, as shown by the following proceedings:

'By Mr. Beggs:

'Q. As I understand, in september, 1935, the sheriff was chasing you and you didn't know it?

'A. He didn't chase us.

'Q. Didn't the sheriff run you down and Cleve Jones run you down,--both chasing you and you didn't know it?

'A. He could have found us right at the car, the car was parked there,--he had slipped up and taken the yodler off the distributor.

'Q. You say that 2 or 3 hundred yards from the same property you are accused of taking the wire from?

'A. There you are.

'Q. You know where the Marhoeffer land is?

'A. Oh, yes.

'Q. You were caught that night within 2 or 3 hundred yards of this fence?

'A. No, sir,--I wasn't pulling no wire from that fence.

'Q. Where do you work,--what work do you do?

'A. I saw logs for Cary Kelley.

'Q. You work six days or seven?

'A. Six days whenever I'm able.

'Q. Are you in poor health?

'A. Yes sir, pretty bad.

'Q. Your work doesn't hold out six days in the week?

'A. Yes sir, got enough of work for six days.

'Q. How long have you been working six days a week for him?

'A. I haven't been working but about three weeks for him now.

'Q. Where were you working before that?

'A. I was working for Mr. Jones.

'Mr. Adams: I don't see the materiality of that.

'Objection overruled. Exception noted.'

The State Attorney offered in rebuttal Hon. Wilbur Osburn, County Judge of Okaloosa County, Florida, who testified, viz.:

'Q. I'll ask you to look at this criminal docket, page 154, case of State v. Jim Wilson and Ben Wilson,--you have that case before you?

'A. No, that case was handled by Judge Powell, Judge of the Court prior to my taking office.

'Q. The case came before Judge Powell, who preceded you as County Judge?

'A. Yes sir.

'Q. What disposition was made of that case,--what does the record show?

'A. The record shows a plea of guilty was entered on the 9th day of January, 1936.

'Q. What was the sentence that was imposed,--read that?

'A. It is ordered and adjudged that the defendants pay to the State of Florida, for the use of Okaloosa County, the costs of this prosecution,--done and ordered at Crestview--and there's a notation that fine was suspended on payment of cost.

,'Q. What was the offense with which Jim Wilson was charged?

'A. The offense of unlawfully taking down and cutting wire fence.'

The State Attorney offered in rebuttal the testimony of Hon. John P. Steele, Sheriff of Okaloosa County, Florida, who testified, viz.:

'Q. You are John P. Steele, sheriff of Okaloosa Count?

'A. Yes.

'Q. Sheriff, the judgment of conviction Judge Osburn has just read into the evidence against Jim Wilson, involving the taking down of fence,--were you a witness in that case?

'A. I arrested Jim that night.

'Q. Upon what land was he accused of taking down the fence?

'A. I know it as the Marhoeffer tract of land, West of the Okaloosa tower.

'Q. In reference to the case now on trial, was it the same land or different land?

'A. Same land, on the West side.

'Q. On the same tract of land?

'A. Yes sir.

'Q. Sheriff, I notice the defendant entered a plea of guilty. Was there any evidence to show the taking down of the fence, the wire of the fence?

'Mr. Adams: We object,--he can't go into the facts of the case.

'Mr. Beggs: I withdraw that question.

'Q. Sheriff, do you know of your own knowledge of the tampering with the fence on the Marhoeffer land that night?

'Mr. Adams: We object to the question on the grounds that the record shows a plea of guilty, and such question would seek to explain the plea of guilty and impeach the record of the Court.

'Objection overruled.

'Q. (Reporter reads last question.)

'Mr. Adams: We object further on the grounds that it seeks to charge the defendant with a separate and distinct offense other than the one he is on trial for.

'The Court: He is not being tried at this time on that particular offense, but it is in rebuttal of the testimony you brought out on his direct examination.

'Exception noted.

'A. Yes.

'Q. What do you know of your knowledge regarding the taking down of the fence?

'Mr. Adams: We move to strike this witness' testimony and object to the further testimony on the further ground that it seems to explain the judgment of conviction in the Court below, and it is immaterial and irrelevant and is offered only for the purpose of prejudicing this jury against this defendant.

'The Court: The objection is overruled. The witness testified he had never tampered with any fence on that land, and if the sheriff saw him, he can testify.

'Mr. Adams: And we object further on the ground that it is too remote,--the time the sheriff states was in '35.

'The Court: Your objection will still be overruled, because the witness in his testimony denied ever doing anything at all on the Marhoeffer land.

'Exception noted.

'A. I arrested Jim Wilson and Ben Wilson.

'Q. When was that?

'A. I can't give the date,--I can look at the docket and tell.

'Q. That's the same time that Judge Osburn read?

'A. Same as Judge Osburn just spoke about. I went to the place where I got information and we thought somebody was butchering cattle and was watching out for some fellow, and I went down there and found a car a trailer parked about 150 feet from the Northwest corner of the particular fence, and I sent,--I believe D. Dubose was with me at that time,--I sent him to take the brake box,--that's what I call it, out of the distributor, and I went on back West about a mile and turned around and come back, and they were trying to crank their car. I stopped and they said they were having a little trouble cranking, and I told them I fooled with it, I took the brake box out, so I arrested them and brought them on back. Before I arrested them, i had heard the wire squeaking and I went out to watch them and they ran off, and I overtaken them,--at least I drove around the other road and we met about 100 yards below the tower, so I took them back down there,--I left one there and took the other, one at a time,--and their tracks on the ground there corresponded with their shoes that they had on. Jim or Ben, I don't recall which one now, but one of the shoes was worn on the bottom of the foot, a place about as big as a dollar, and it corresponded there, and they took the shoe off and it corresponded all the way up and down the fence. Then I takes him back and gets Ben, and he claimed his shoe had been burned on the toe, which ever one it was, across the toe, and it corresponded with the other track.

'Q. How much fence was loose there, Sheriff?

'A. A quarter and a half, or a half mile.

'Mr. Adams: We object on the same ground.

'The Court: There's no use to go into that.

'Q. You heard them and saw them and they ran?

'A. Yes sir.

'Q. And it was fire on the Marhoeffer land?

'A. Yes sir.

'Q. In the name of Charles H. Overman, Trustee, for the Marhoeffer interests?

'A. Yes.

'Mr. Adams: We desire to make a motion for mistrial on the ground that this witness' testimony is that all this took place in '35 and has the effect of prejudicing the jury against this defendant, and he can't possibly be held on an offense with such as that going on.

'Motion denied. Exception noted.

'Mr. Adams: In order to keep the record clear, we want to move the Court to strike this witness' testimony on the grounds, first, that it seeks to charge this defendant under a separate and distinct offense,--second, such matters are entirely too remote,--and third, because it seeks to explain the records of the Court wherein a Verdict was rendered.

'The Court: It is not offered to prove a substantive offense, but for the purpose of showing that the witness has been on the land, which he claimed he had not.

'Exception noted.

'Mr. Beggs: The State rests.'

Counsel for plaintiff in error objected to the evidence because it tended to establish essentials of a separate and distinct offense different from which the defendant was then being tried. The indictment or information charged the defendant with taking wire or fencing on the 12th day of March, 1938, in Okaloosa County, Florida, while the testimony supra, offered on the part of the prosecution in rebuttal referred to a previous case against the defendant alleged to have occurred in 1935, several months prior to the present charge and in no manner connected therewith or otherwise falling...