Starke v. State (49 Fla. 41, 1905)

Carter, J.

On xvoveniDer 17, 1903, plaintiff in error was indicted for murder in the Circuit Court of Duval county. The indictment charged murder in the first degree, but upon, the trial had in February, A. D. 1904, defendant was convicted of murder in the second degree, and sentenced to confinement in the State prison for life. From the sentence imposed this writ of error was taken.

A minute entry dated February 1st, 1904, reads as follows :

“The State of Florida vs. James E. Starke.

The judge of this court this day in the presence of the sheriff and the clerk drew from the jury box the names of one hundred talesmen,, and a venire was issue for the one hundred so drawn, commanding the sheriff to sum-men each of them to be and appear before this court at 10.00 A. M. on Monday, February 15th, A. D. 1904, to serve as jurors in the case of the State of Florida against James E. Starke.”

The first assignment of error complains that the proceedings mentioned in this entry were had during defendant’s absence. There is nothing before us to show that the defendant was in fact absent when the proceedings mentioned were had. The record merely fails to show that he was present. The entry does not purport to show the making of an order for the special venire, but simply that one hundred names were drawn from the jury box and that a venire was issued to the sheriff to summon the persons whose names were so drawn to serve as jurors in the case against the defendant. There is nothing to show that this drawing was not had and venire issued in pursuance of a previous order to that effect. The question presented therefore is this: Must the record show that the defendant was present when the names of persons to constitute a special venire to try his case are drawn from the jury box and a venire issued therefor, where such drawing is had and venire issued in pursuance of a previous order therefor? We are of opinion that this questioir must be answered in the negative, these matters being ministerial preliminaries merely, and not material “steps” or “stages” in the trial within the meaning of the rules requiring the record to show the defendant’s personal presence. 1 Bishop’s New Crim. Proc., section 269; Pocket v. State, 5 Tex. App. 552; Cordova v. State, 6 Idem. 207; Hurd v. State, 116 Ala: 440, 22 South. Rep. 993; Stoball v. State, 116 Ala. 454, 23 South Rep. 162; Frazier v. State, 116 Ala. 442, 23 South. Rep. 134; Jones v. State, 116 Ala. 468, 23 South. Rep. 135; Milton v. State, 134 Ala. 42, 32 South. Rep. 653. See, also, Thomas v. State, 47 Fla. ..., 36 South. Rep. 161.

Whether the record must show the order for the drawing of a special venire, and that defendant was present when it was made, are questions not raised by the assignments of error or argued in this case, and we do not decide them.

The defendant introduced as a witness J. O. LaFontise who testified that about ten minutes after John F. Angel, the deceased, was shot by the defendant, a justice of the peace in witness’ presence asked Angel “for a statement and got a little out of him — he got a little from him, but not much.” In reply to the question “Did he say anything at all about the affair — how it occurred, etc.?” he answered, “No, not how it occurred. He just started out with”. Here he was interrupted by counsel for the State, and upon objection interposed the court refused to permit the witness to state what Angel said, and this ruling is assigned as error. It is argued in support of this assignment that the statement of Angel was admissible either as a dying declaration or as part of the res gestae. The witness testified that the statement had no refernce “to how the affair occurred,” and there is nothing in the questions proposed, nor in the testimony of the witness LaFontise from which the court can see that the statement of Angel was relevant or pertinent to the issues in the case. In Boykin v. State, 40 Fla. 484, 24 South. Rep. 141, it was held that “it is the duty of a party appealing to an appellate court to make the errors apparent of which he complains, and where in the examination of witnesses on the trial, any of his questions have been excluded on objection, and such questions do not in and of themselves indicate whether the answers thereto will be material or pertinent evidence or not, it is his duty in order to have the rulings thereon reviewed on appeal to make an offer at the trial of what he proposes to elicit or prove by such questions, so that both the trial and appellate court can determine whether the proposed evidence is material or not, otherwise he fails to make his alleged error to appear and the appellate court will so declare.” The same principle controls the present question, consequently the assignment of error is not well taken.

The defendant introduced testimony tending to prove that his appearance, conduct and language were peculiar and unnatural on Tuesday, Wednesday and Thursday (the day of the homicide), and for sometime afterwards; a number of witnesses in his behalf basing their opinion that he was insane upon incidents coming under their personal observation upon the days mentioned. The defendant testified that he went to White Springs to see his wife on Sunday; that while at the latter place he noticed his •wife attempting to conceal a letter which she covertly tore in pieces and threw in the slop jar,; that he secured the pieces and on his return to Fernandina Monday night put them together and' read the letter. The letter was introduced in evidence, and the defense was based upon the theory that this letter caused the defendant to believe that his wife was unfaithful, thereby producing such a mental shock as to destroy his reason, and that the homicide was committed while this mental condition existed. The deceased was the brother of defendant’s wife, and the wife was present at the time of the homicide. Presumably she knew all the facts immediately connected with the homicide, and also her husband’s mental condition at the time.

The defendant offered in evidence the subpoena which had been issued for his wife as a witness upon his application to show as was stated at the time that she had been served, but had failed to appear. The court excluded the subpoena on objections by the State and this ruling is assigned as error. This ruling was entirely correct, for the evidence offered was wholly irrelevant. It is argued that as the wife was presumably a very important wiL ness, the court should have permitted defendant to prove his effort to secure her attendance in order to rebut any unfavorable inference which might be drawn against him from her absence. We are not prepared to say that such an inference could properly be drawn, but if so, it would not be rebutted by the proof offered as it did' not show that the attendance of the witness could not have been procured by an attachment if she failed to appear after due service.

The State in rebuttal introduced testimony tending to prove that the defendant was under the influence of ‘intoxicants on Tuesday, Wednesday and Thursday, and sought to account for the peculiarities in his manner, conduct and speech on those days in that way. A. V. Baisden, a witness for the State, was permitted to testify that defendant was drinking on Monday night while on Iiis way from White Springs to Fernandina. The defendant objected to .this testimony upon the grounds that ft was not in rebuttal, and assigns error upon his exception to the ruling admitting it. There was no error here, as the testimony taken in connection with the other testimony tending to show that the use of intoxicants was continued on Tuesday, Wednesday and Thursday, was proper in rebuttal.

■ The court permitted the State witness W. S. Whitney to testify in rebuttal that about three weeks prior to the homicide the defendant was under the influence of liquor. Defendant objected to this testimony upon the ground that same was not in rebuttal. The objection was properly overruled, as several of the defendant’s witnesses on direct examination had stated that defendant had not been drinking for quite awhile previous to the homicide. Thomas A. Hall, one of defendant’s witnesses, testified that he saw defendant on Tuesday morning; that from defendant’s appearance then, witness at first thought defendant was drunk; but after talking with defendant awhile he' changed his opinion. He said: “What surprised me was that at first I thought he had been drinking, when in fact he had not been drinking for a couple of years, and I was surprised; but after talking with him awhile I decided that he was. not drunk, but that he was under some bad mental strain, he was not natural.” Harry Hartley, another witness for defendant, tesified that he saw defendant Wednesday.evening and night, and also Thursday morning, and also testified to certain peculiars observed on those occasions. He testified on direct examination: “Q. Was there anything to indicate that he was under the influence of liquor or drunk? A. No sir, I had known that he had not been drinking. Q. In a year? A. Only Coco Cola; he drank cordial, Coco Cola and things like that.”

M. J. Williams, another witness for defendant who had known him about four years testified on direct examination that “I never seen him drink in my life, and I’ve work for him, collecting water rents and things like that.”

The court also permitted Henry W. King and Thomas 'UV. Clark, witnesses for the State, over defendant’s objections, to testify in-rebuttal that defendant was under the influence of liquor several times within a year prior to the homicide. It is- contended that this testimony was not proper in rebuttal, but for reasons just stated we think it was. ■ - - •

. The eighth assignment of error complains that “'the .court .erred in refusing to allow counsel for' defense to question.the witness Henry W. King as to what he testified’ on a former trial about a visit to the Angel home after Starke had left Fernandina on September S(h, 1903.” This witness who was introduced by the State •testified that on Tuesday morning, prior to the homicide, the defendant came to his place of business twice early in. the morning and that witness then thought defendant was ■on. a spree, as he acted in the same manner as witness had frequently seen him do when on sprees. On cx*ossexamination .he stated that he did not see Starke again that day,.and that he did not go to Starke’s house to see him. The defendant thereupon propounded questions to the witness inquiring whether on a former'trial witness did not state that he went to the Angel house, where Starke resided, on the same day, and found the windows open and lights burning. The court sustained objections to the questions, and at a subsequent stage of the examination counsel stated to the court: “We want to note an exception to the court’s ruling prohibiting the question being answered by the witness as testified to in the former trial of this case.” It is doubtful if this exception is a sufficient basis for the assignment of error, but treating it as sufficient, we are of opinion that there is no error in the ruling. It is not pretended that the questions were in cross of the direct examination, but it is contended-that they were proper as laying the predicate for impeaching the witness by his contradictory statement. We fail to see that the matter inquired about was at all relevant to the issue. Counsel for defendant argues its relevancy upon the theory that if Starke left his. house with.windows open and lights burning, this fact tended to show that he was insane, and, therefore, the fact was material. But the testimony shows that .other persons resided in the house with Starke, and there is nothing to show that he, and not some one else, left, it in the condition stated. An effort was made to prove that the other persons who .resided there were not at home at the time, but the court excluded tire' testimony, and no' exception was taken to that ruling. Under;these circumstances the question? : were properlv excluded, under the familiar rule that a witness can not be cross-examined as. to matters*irrolevant or immaterial, and beyond the scope of the. direct examination merely for the purpose of laying the foundation for the introduction of his contradictory statements regarding such matters. Myers v. State, 43 Fla. 500, 31 South. Rep. 275.

Charles J. Angel, a witness for the State, testified in rebuttal that he had known defendant several years very Intimately, the defendant having married witness’ sister; that he saw and talked with defendant on Tuesday night, Wednesday evening and Thursday morning (the day of the homicide j‘; that defendant was at each of these times much under the influence of intoxicating liquor. He detailed the language and conduct- of the' defendant upon the occasions mentioned, and also testified that he had seen the defendant intoxicated in April, and the early part of July, prior to the homicide in September. Over •the defendant’s objections the witness was permitted to testify as to defendant’s acts, language and conduct, and to peculiarities manifested on those occasions, not observable when defendant was not under the influence of intoxicating liquor. These peculiarities and the defendant’s acts, language and conduct were very similar to peculiarities in manner, and defendant’s acts language and conduct on the day of the homicide and the two previous days as observed by the witness, and by witnesses introduced by the defendant in support of his defense of insanity. The objections urged to the introduction of the testimony above mentioned, and in a motion to strike out such testimony, were that it was not proper in rebuttal; that it was not related to the issue, and that the periods 'covered by the testimony, April and July, were too remote. We think the objeetions were not well taken, and that the testimony was properly admitted. It tended to sustain the theory of the State that the abnormalities observed by the defendant’s witnesses on the day of the homicide and the two previous days were to be attributed to the effects of intoxicating liquors, and not to insanity as contended by the defendant, and was relevant and in rebuttal in connection with other testimony introduced by the State, showing that the defendant was drinking, and that he was under the influence of intoxicants on the day of the homicide and preceding days. The occasions referred to, April and July, were not so remote as to render the testimony inadmissible on that ground;

D. M. Baker, a witness for defendant, testified to a conversation with defendant on Tuesday night before the homicide, and to certain statements made by defendant , that the witness thought were erratic, as well as certain peculiarities of conduct on that occasion. Among other things he said defendant told him he wante on a former trial of the case he would have hung the defendant. In support of these grounds of the motion two affidavits were filed on behalf of defendant. One was made by Clem L. Decker, a* strong sympathizer with defendant, who had taken a great deal of interest in his behalf, and who had testified as a witness for defendant at the trial. He states that at the time he testified as a witness he was struck with astonishment to find that Ellis was a member of the jury, but that k'e"did not tell defendant or his counsel that he had heard Ellis make the statement attributed to him in the motion until after the verdict for the reason that “he had no opportunity to do so, or it did not occur to him to do so.” The other affidavit was from a person who-worked in the same barber shop with Decker, who claimed to have heard the conversation between Decker and Ellis. The State filed the affidavit of the juror positively denying the statements attributed- to him, and asserting positively that he was absolutely without bias or prejudice against defendant. He was also personally examined before the court regarding the matters asserted in the motion. In Yates v. State, 26 Fla. 484, text 500-501, 7 South. Rep. 880, this court said speaking of a similar question: “When the evidence is conflicting the verdict will not be set -aside unless manifest injury has been done the accused, which is not sliowm in the case at bar. Such questions as this must necessarily be left largely to the discretion of the trial judge who may know the witnesses and be able to judge of their credibility.” In this case the court permitted a full examination of all the facts connected with the alleged bias on the part of the juror Ellis, and after hearing all the testimony refused to set aside the verdict. There is nothing to show that his discretion was abused, or that he erred in placing credence in tbe testimony of the juror, rather than in the affidavits produced by the defendant.

The only other ground of the motion for a new trial argued in this court relates to the sufficiency of the evidence to sustain the verdict. The evidence has been carefully examined and the court is of opinion that it is sufficient to support the verdict.

This disposes of all the assignments of error that have been argued, and finding no reversible error the judgment will be affirmed.

Whitfield, C. .J., and Shackleford, J., concur.

Taylor, P. J., and Hocker and Cockrell, JJ., concur iii the opinion.