Wood v. State

• Decision Date: 20 March 1893
• Citation: 12 So. 539,31 Fla. 221
• Parties: WOOD v. STATE.
• Court: Florida Supreme Court

12 So. 539

31 Fla. 221

WOOD v. STATE.

Florida Supreme Court

March 20, 1893

Error to circuit court, Washington county; W. D. Barnes, Judge.

Gabriel Wood was indicted for murder. He was convicted of manslaughter in the second degree, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. It is not error to refuse to permit a party calling an impeaching witness to lead him by reciting in a question the statement which he proposes to prove was made by the witness sought to be impeached.

2. It is not error for the trial court to refuse to permit a party who has called an impeaching witness to ask him on the direct examination if he had ever heard the reputation of the witness sought to be impeached discussed. The usual practice is to leave it to the cross-examination to enter primarily upon a test of the knowledge from which the impeaching witness has spoken.

3. In charging juries, care should be taken by the judge not to leave them under impression that, in his judgment, they must convict of some degree of offense covered by the indictment and cannot acquit. The jury should be properly instructed as to the presumption of innocence which surrounds a person on trial for crime.

4. Points of law as to which a jury is to be instructed cannot arise in any case except upon the facts or evidence thereof and hence, properly, the charge to the jury should give the law applicable to all the facts or evidence, and should not give law which is applicable solely to facts or evidence not in the case. The former law is relevant to the case, whereas the latter is irrelevant to it, and may be misleading.

5. When a judge instructs a jury that they cannot convict of a certain offense, or a degree of offense, covered by the indictment, and there is any evidence before the jury, the instruction is not confined solely to the law of the case but gives his opinion as to the effect or weight of the evidence, and is a violation of the policy of the statute which prescribes that charges to juries shall be 'only upon the law of the case.' The duty imposed by this statute is most properly performed by simply instructing upon the law applicable to the case, and omitting and refusing to instruct as to the law not applicable thereto. The fact that some violations of this policy may, in view of the circumstances of the case, not be material or reversible error, does not change the statute, nor justify a disregard of it.

6. If a judge instructs a jury that they cannot convict of a lesser offense, or degree thereof, covered by the indictment, than that of which a verdict is subsequently found on the trial and there is any testimony of which it can with any reason whatever be said that its effect might have been to cause the jury to convict of such lesser offense or degree, the instruction will be material error.

7. The deficiency or error of one part of a charge to a jury may be supplied or corrected by another portion of it.

8. When two distinct propositions of law in a charge are excepted to as a whole, the exception falls if one of the propositions is good.

9. The judge charged the jury: 'If you have a reasonable doubt of the guilt of the accused, you will acquit. A reasonable doubt is one that must satisfy a reasonable mind after a full comparison and consideration of all the evidence.' Held, that the second sentence was confusing and misleading, and, considered with the first sentence, calculated to create the impression that there must be such a doubt as must satisfy reasonable minds that the accused was not guilty.

COUNSEL Benjamin S. Liddon, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

RANEY C.J.

The plaintiff in error was tried at the spring term, 1892, of the circuit court in Washington county, upon an indictment charging him with having murdered Samuel Osborne on January 23, 1889, The jury returned a verdict of builty of manslaughter in the second degree, and the court sentenced the prisoner to imprisonment in the state prison for the period of seven years, to which sentence or judgment he has taken a writ of error.

I. The first error assigned is the refusal of the trial judge to permit the defendant's counsel to ask Mrs. Reddick, a witness for defendant. 'Did Mrs. Kent say to Seth Osborne, at her house, on the night of the day that Osborne was killed, that if Wood had not killed Osborne, that Osborne would have killed Wood?' Mrs. Kent was a witness for the prosecution, and had on her cross-examination said: 'I know Elizabeth Reddick. She is my daughter. I talked to all of C. F. Osborne's family. * * * I said to Mrs. Reddick that Osborne said, 'Gabe, would you shoot me?' and that Osborne died with his knife in his hand. I did not say to Mrs. Reddick or to Seth Osborne that if Gabe had not killed Sam, that Sam would have killed Gabe. I did not say that Sam died brave.' The objection made by the state attorney, and sustained by the court, to the question under discussion, was that it was leading. Without conceding that the proper basis was laid in the examination of Mrs. Kent for her impeachment in the manner proposed, (1 Greenl. Ev. §§ 461, 462; Ortiz v. State, 30 Fla. ----, 11 South. Rep. 611,) we are satisfied that there was not error in sustaining the specific objection interposed by the state attorney. In note 1, § 462, 1 Greenl. Ev. (13th Ed.) it is said, citing Hallett v. Counsens, 2 Moody & R. 238, that if the witness sought to be impeached denies having made contradictory statements inquired of, and a witness is called to prove that he did, the particular words must not be put, but the witness must be required to relate what passed. See note 3, same section, of fifteenth edition. We fail to see why the rule excluding leading questions is not applicable to this kind of evidence. We, however, do not mean to intimate that it would be assignable as error if the trial judge had permitted leading questions. Express Co. v. Van Meter, 17 Fla. 783, 797.

II. The second error assigned is the refusal to permit the defendant to ask George Crooms, one of his witnesses, if he had ever heard the reputation of William Page for truth and veracity discussed. Page was one of the state's witnesses. Crooms had previously stated, on examination by the defendant, that he knew Page's reputation in the community where he lives, and that it was bad, and from that reputation witness could not believe him on his oath; and had also said: 'I live at Bear Creek, in this county; and I think, when I moved down there, Page was living on the head of the bay. Then he moved down the bay, and then back; then to Apalachicola. Mr. Kent was Page's nearest neighbor. I have heard Mr. McAllister, Mr. Spiree, Mr. Brooks, and others speak of him.'

We are not satisfied but that the logical deduction from the record, particularly if we consider the examination of previous witnesses on the same point, is that the witness had, in effect, if not expressly, answered this very question in stating that he had heard Mr. McAllister and others speak of him; but, however this may be, we see no ground for holding that there was error in the ruling complained of. Evidently the usual questions had been asked the witness. and he answered and stated that he knew the reputation of the assailed witness in the community where he lived for truth and veracity, and that he could not believe him on his oath. The idea of the judge, if it be that the question under discussion had not been answered already, was doubtless to leave it to the cross-examination to enter primarily upon such a test of the knowledge from which the impeaching witness spoke, if he deemed it material to do so. This is the general rule, and we do not think there was error in pursuing that practice. Robinson v. State, 16 Fla. 835, 840; State v. Howard, 9 N. H. 485; Bates v. Barber, 4 Cush. 107; Com. v. Lawler, 12 Allen, 585; Wetherbee v. Norris, 103 Mass. 565; Childs v. State, 55 Ala. 28; Hadley v. State, 55 Ala. 31; Lower v. Winters, 7 Cow. 263; People v. Mather, 4 Wend. 230, 257; Frye v. Bank, 11 Ill. 367; Crabtree v. Kile, 21 Ill. 180; Crabtree v. Hagenbaugh, 25 Ill. 233; 1 Greenl. Ev. § 461. We have, of course, assumed, in the absence of any objection to the questions which may have been put to the impeaching witness, that the inquiry was as to the general reputation of the state's witness for truth and veracity in the community where he lived, and also that the meaning of inquiry under discussion was as to discussion by the people of that community.

III. The next point urged is the exception to the part of the charge to the jury stating that, 'under an indictment for murder in the first degree, you may find the accused guilty of murder in either of the three degrees; or you may find him guilty of manslaughter in either of the four degrees according to the facts and circumstances of the case.' The judge had previously stated that the indictment was for murder in the first degree, and that there were three degrees of murder, and four degrees of manslaughter. He then defined murder in the first degree; stated to the jury that, under the facts and circumstances of this case, they could not find the prisoner guilty of murder in the second or third degrees, or of manslaughter in the first, third or fourth degrees; explained manslaughter in the second degree, justifiable and excusable homicide, including the law as to threats, self-defense, and overt acts in execution of the same; instructed them as to their powers and duties where there is conflict of testimony, and that they were the sole judges of the evidence, and that the statement of the prisoner was evidence for whatever they might think it worth; and then stated what would make it their duty to find the prisoner...