Wolf v. State

• Citation: 72 Fla. 572,73 So. 740
• Parties: WOLF v. STATE.
• Decision Date: 08 January 1917
• Court: Florida Supreme Court

73 So. 740

72 Fla. 572

WOLF v. STATE.

Florida Supreme Court

January 8, 1917

Error to Circuit Court, Hernando County; O. K. Reaves, Judge.

Tom Wolf was convicted of willfully and maliciously administering poison to cattle, and he brings error. Reversed.

Syllabus by the Court

SYLLABUS

A motion to quash an indictment which consists of more than one count should be denied if the indictment contains one good count.

An indictment will not be quashed for indefiniteness in its allegations, unless it is so vague and indefinite as to mislead or embarrass the accused in the preparation of his defense or subject him to the danger of a new prosecution for the same offense.

The right to peremptorily challenge jurors may be exercised until they are sworn in chief.

Evidence which is irrelevant, but prejudicial to the defendant, should not be admitted, and the admission of such evidence over the defendant's objection constitutes reversible error.

An instruction which is based upon evidence which is irrelevant and prejudicial to defendant, and which is admitted over his objection, should not be given.

It is not error to refuse an instruction which is argumentative and which invades the province of the jury, which is to determine what degree of credence should be placed upon the testimony of a witness.

COUNSEL Davant & Davant and F. L. Stringer, all of Brooksville, for plaintiff in error.

T. F West, Atty. Gen., and Glenn Terrell, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

The plaintiff in error and Clara Varn were jointly indicted at the fall term of the circuit court for Hernando county for willfully and maliciously administering poison to 'three head of cattle' the property of Josiah S. Richardson. The indictment contained three counts. The first charged the defendants with administering the poison; the second charged that they exposed poisonous substance, to wit, strychnine with the intent that the same should be taken by the said animals; and the third count charged the plaintiff in error hereafter called the defendant, with willfully and maliciously administering the poison, and Clara Varn as being accessory before the fact. A severance was granted upon the application of Clara Varn, and Tom Wolf was placed upon trial at the spring term, 1916, and convicted. A motion in behalf of both defendants to quash the indictment was overruled. This motion to quash did not attack the second count. That count described the poison; but, inasmuch as the first and second counts did not describe the poison alleged to have been administered to the animals, counsel for the plaintiff in error insist that they were bad and the motion should have been granted. The assignment of error based upon this order of the court is not well founded. In the first place, it is admitted that the second count is good, but the motion was directed against the 'indictment found against them and each and every count thereof,' and not confined to the two counts deemed to be imperfect. See Sigsbee v. State, 43 Fla. 524, 30 So. 816. Nor do we consider the two counts attacked by counsel in their brief, to be so vague and indefinite as to have embarrassed the accused in the preparation of his defense, not so uncertain as to subject him to the danger of a new prosecution for the same offense. See Strobhar v. State, 55 Fla. 167, 47 So. 4; Mills v. State, 58 Fla. 74, 51 So. 278; Dickens v. State, 50 Fla. 17, 38 So. 909; Edwards v. State, 62 Fla. 40, 56 So. 401; section 3962, Gen. Stats. 1906, Florida Compiled Laws 1914.

A jury of six men was called and tendered to the defendant, who accepted the panel so tendered, after which, but before the jurors were sworn to try the issues joined, the state attorney challenged one of them, who was excused by the court and another called in his place. The panel as then constituted was tendered; but, the defendant refusing to announce whether he accepted it or not, the jurors were sworn in chief. There was no error in this proceeding. The defendant had the right to a fair trial by an impartial jury. There is nothing in the record to show that he did not receive it so far as this incident was concerned. See Williams v. State, 45 Fla. 128, 34 So. 279; Mathis v. State, 45 Fla. 46, 34 So. 287; McRae v. State, 62 Fla. 74, 57 So. 348.

Many of the assignments of error rest upon objections and exceptions to the admission and rejection of evidence. We have carefully examined the evidence and the court's rulings upon the objections interposed to the reception of certain testimony. We think that error was committed in some of the rulings and illegal testimony admitted, over defendant's objection, to his prejudice.

It seems from the evidence that Mrs. Varn had a dairy business. She lived in Brooksville and owned a pasture some distance out of town adjoining a field owned by J. S. Richardson in which he kept certain cattle. The defendant Tom Wolf, a boy of about 15 years of age, was employed by Mrs. Varn and lived in the house occupied by her in town. Several head of cattle owned by J. S. Richardson became sick and showed symptoms of poisoning. These cattle were...