White v. State (59 Fla. 53, 1910)

Whitfield, C. J.

This writ of error is to a judgment of conviction of murder in tbe second degree. Tbe homicide occurred on a street at night with no eyewitnesses. Tbe points that will be here discussed relate to tbe admissibility of circumstantial evidence.

“Great latitude is to be allowed in tbe reception of indirect or circumstantial evidence. It includes all evidence of an indirect nature, whether the inferences afforded by it be drawn from prior experience, or be a deduction of reason from tbe circumstances of tbe particular case, or of reason aided by experience. The competency of a collateral fact to be used as tbe basis of legitimate argument, is not to be determined by tbe conclusiveness of tbe inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate tbe inquiry, or to assist, though remotely, to a determination probably founded in truth.” Mobly v. State, 41 Fla. 621, 26 South. Rep. 732; Reynolds v. State, 52 Fla. 409, 42 South. Rep. 373.

In a prosecution for murder evidence as to the particulars or merits of a previous difficulty between the defendant and the deceased, not within the issues being tried, is not admissible. Sylvester v. State, 46 Fla. 166, 35 South. Rep. 142; 4 Elliott on Ev., Paragraph 3036.

But where a homicide is shown and an issue of self-defense is made, evidence is admissible as to the fact of a hostile meeting between the defendant and the deceased shortly before the fatal encounter, and also as to the apparent feeling of the parties towards each other when they separated, since such circumstances may tend to show the probable attitude of friendliness or hostility of each toward the other when the fatal meeting occurred. See Sylvester v. State, supra, 4 Elliott on Ev., Paragraph 3036; 21 Cyc. 894, 915; 21 Am. & Eng. Ency. Law (2nd Ed.) 217; White v. State, 30 Tex. App. 652, 18 S. W. Rep. 462; see also, Lester v. State, 37 Fla. 382, 20 South. Rep. 232.

An issue of self-defense under the plea of not guilty was made when the defendant testified that as he was going home about ten o’clock at night, he unexpectedly saw the deceased approaching him within six or more feet with what he supposed was a weapon in a threatening attitude, after ascertaining it was the defendant and saying “well, we can settle this matter right now, and will settle it right now,” whereupon defendant shot deceased five times, the deceased advancing on the defendant in a threatening manner when each shot was fired, and the defendant believing as he fired each shot that his life was in imminent danger. Testimony was admitted of a meeting of the defendant and deceased in the presence of á friend of the defendant, about an hour before the homicide, at which time the defendant struck the deceased once with his fist.

The defendant was then asked “what commenced the altercation between you and him there and caused the blow to pass?” This question was objected to by the State and was properly excluded by the court because it clearly relates to the merits of a previous encounter that was not a part of the res gestae and was not within the issues being tried.

The bill of exceptions shows that after the above quoted question was excluded the following proceedings were, had: “Mr. Price: * * * * * * * * We further proffer to prove, in response to the same question, that he, Dr. Alexander, was leaving the office, having been let out of the office by the defendant, and the defendant told Dr. Alexander that it was his purpose to publish him to the people of Marianna publicly the next morning, and that the last thing that Dr. Alexander said before leaving and the last words that he said to the defendant before the meeting just preceding the shooting, was, Jim, for God’s sake don’t do that; it will ruin me here in Marianna.’

Mr. Kehoe: After having made that proffer and the court having ruled on it, we again except.” The same testimony had been offered and excluded and the ruling excepted to before the defendant testified.

Treating the above testimony as having been properly offered, and as having been excluded by the court and an exception noted, its admissibility will be considered.

This proffered testimony does not go to the merits of the altercation at the prior meeting. It does not disclose why the intention to publish was formed, or whether such action was justified; but it tended to show the feeling of the parties towards each other at the close of the previous interview, and was admissible as tending to explain the attitude of each at the fatal meeting as to which the defendant testified. Any circumstances tending “even if a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination, probably founded in truth,” of the defendant’s testimony as to the attitude and action and words of the deceased at the fatal meeting, are admissible under the rule announced by this court as quoted above. This testimony taken with other evidence might be. a basis for legitimate argument favorable to the defendant, the credibility and probative force of it being primarily for the jury to determine. Under the broad rule above quoted and over the defendant’s objection the court had admitted testimony that after the first meeting and not in the .presence of the defendant, the deceased had asked a person where the friend of defendant, who was at the first encounter, lived; and it was shown that he lived near the place where the homicide occurred. From this the State could urge an inference by the jury that the deceased was at the place of the homicide on a peaceful mission, though he had not often been seen there, and though the defendant lived in the immediate vicinity.

Every circumstance not inherently improper that would tend to prove or to disprove the defendant’s testimony of an assault by the deceased that appeared to defendant to endanger his life, is admissible. Although in fact the deceased had only an umbrella in his hand when shot, the defendant is allowed to justify if -under all the circumstances he had reason to believe and did believe an assault was made by the deceased with a weapon that endangered his life. These circumstances include the defendant’s knowledge of the feeling and attitude of the deceased towards him; and in passing upon the reasonableness of the-defendant’s belief of his danger, the jury may be informed of the apparent attitude of the deceased towards the defendant at the close of an altercation an hour before. This does not go to the merits of the first encounter. It can not be said that the excluded evidence could not reasonably have affected the verdict under the facts of this case.

For the error indicated the judgment is reversed and a new trial awarded.

Taylor, Hocker and Parkhill, JJ., concur.

Parkhill, J.,

concurring.

I think the judgment of conviction in this case should be reversed because:

1. The court erred in permitting the witness John Justice to testify that, upon the night of the homicide arid a short time prior thereto, the deceased, not in the presence of the defendant, asked the witness where Malcolm Stephens lived, and that the witness, not in the presence of the defendant, gave the deceased directions to Malcolm Stephens’ home.

2. The court erred in admitting the testimony of George Farley as to what his sister told him the deceased said to her the night of and a short time before the homicide.

3. The court erred in refusing to permit the witness, Malcolm Stephens, to answer the following question propounded by the defendant’s counsel: “State whether or not during the conversation there was any personal difficulty between the defendant and Dr. Alexander”-—referring to the deceased at a time shortly before the homicide.

4. The court erred in sustaining the objection by the State to the following question propounded by the defendant to the witness Malcolm Stephens: “State whether or not in that conversation, or at any time, there was any statement made by the defendant to Alexander that he was going to publish him to the people of Marianna for making the assault upon his wife,”—this being the night of the homicide and a short time prior thereto.

Hocker, J., concurs in the above.

Taylor, J., concurs in the above.

Cockrell, J.,

dissenting.

The only assignment of error which the majority opinion sustains is based upon the refusal of the court to admit evidence in response to a question admittedly improper'. In this I cannot concur. The relevance of the testimony is not so obvious, nor does the record as a whole, in my opinion, make such a case as to justify this court in overruling the well established rule that a proper question must first be asked before the party is entitled to elicit evidence in response thereto.

Shackleford, J.,

dissenting.

My judicial associates have been unable to concur in the opinion which I have prepared in this cáse and have reached the conclusion that the judgment should be reversed. I have decided to file the opinion as originally prepared as a dissenting opinion, making only the necessary changes therein.

At the Spring term, 1909, of the Circuit Court for Jackson County, the plaintiff in error, James Y. White, (hereinafter referred to as defendant), was indicted for murder in the first degree, was tried at the same term, convicted of murder in the second degree, and seeks relief here by writ of error.

I find myself confronted with a transcript of the record containing 347 typewritten pages, 103 assignments of error covering 22 typewritten pages, and voluminous briefs. We have several times had occasion to express our disapproval of the practice of assigning ah unnecessary large number of errors. See Hoopes v. Crane, 56 Fla. 395, 47 South. Rep. 992, and authorities there cited. In the cited case we said, “That any one of the Circuit Judges in this State would commit sixty-one separate and distinct errors in the trial of a cause is rather a violent presumption, to say the least of it. Even if such should be the case, it would hardly be necessary to assign every one of such errors in order to secure a reversal from this court.” Yet in the instant case we are asked to believe that 103 errors were committed. It is true that all of them are not argued before us, but most of them are. I now feel called upon to emphasize my disapproval of such practice. I would like to impress upon the members of the bar, if I may be so fortunate as to succeed in so doing, that I consider the practice unfair to the court, unfair to the plaintiff in error and unfair to other litigants. If persisted in, I think we shall be forced to frame and adopt a rule regulating the matter, as has been done by the Supreme Court of Michigan and some of the other appellate courts. I would again like to call attention to the forceful language of Mr. Justice COBB in Kelly v. Strouse, 116 Ga. 872, text 899, 43 S. E. Rep. 280, that “Courts of last resort are human beings,” which we quoted with approval in Atlantic Coast Line R. R. Co. v. Beazley, 54 Fla. 311 text 391, 45 South. Rep. 761, text 787. I also fully approve of what is said by this learned jurist as to the duties devolving upon members of appellate courts and the'fact that they “are liable to make mistakes both in rulings and reasoning, and unguarded and ill-considered expressions are as apt to eminate from them as others.” This must necessarily be so from the fact that they are human beings, therefore not - infallible but subject to like infirmities, weaknessess and defects as other men. This being true, members of the bar as officers of the court should render them all the assistance in their power in properly discharging their arduous duties and should be careful not to impose unnecessary burdens upon them. Squarely in line with our holdings upon the point under consideration, I would refer to the following authorities, with the suggestion that they will be found profitable and instructive: Lockard v. Van Alstyne, 155 Mich. 507, 120 N. W. Rep. 1; Finch v. Karste, 97 Mich. 20, 56 N. W. Rep. 123; Fowler v. Gilbert, 38 Mich. 292; Brewster v. Baxter, 2 Wash. Ter. 135, 3 Pac. Rep. 844; Dime Savings Institution v. Allentown Bank, 65 Pa. St. 116, text 123. In the last cited case, Mr. Justice AGNEW, referring to “indiscriminate allegations of error and useless discussions,” has well said: “They distract our minds by diverting them to consider matters of no moment, and weaken the strong points, if any, by heaping upon them those that are feeble. Upon a writ of error it is much better to consider well the positions which seem to be fairly tenable, and to present them alone. Then the argument spends its concentrated force upon that which commands consideration, and the attention of the judges is not diverted to that which is immaterial. In this way real error is apt to be detected; while in the other, the mind, wearied by unimportant exceptions and inconclusive discussions, is more likely to overlook material errors. I commend these remarks to those who practice before us.” So, in Fowler v. Gilbert, supra, it was said: “Whatever may be the necessity of saving points in the hurry of a trial^ there can be no such necessity after the interval of reflection occupied in preparing exceptions and maturing the case for argument. No assignments should be fairly made unless counsel has at least some plausible ground for insisting upon them.” I would also call attention again to the language used by Mr. Justice BREWER in Fidelity and Deposit Company v. L. Bucki & Son Lumber Company, 189 U. S. 135, text 138, 23 Sup. Ct. Rep. 582, which we quoted in Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425, text 432, 42 South. Rep. 706, text 708, and approvingly referred to in Atlantic Coast Line R. R. Co. v. Crosby, 53 Fla. 400, text 476, 43 South Rep. 318, text 341, which language was as follows: “It may be true, as the Scriptures have it, that ‘in the multitude of counselors there is safety,’ but it is also true that in a multitude of assignments of error there is danger.” From what has already been said it will be seen that there is much truth in this statement. The experience of the writer hereof has been that wherever an unusually large number of errors have been assigned, as a general rule, an examination of them has disclosed the fact that there is but little, if any, real merit in any of them, so that he has come to view a large array of assignments with suspicion and distrust. We have pointed out the function or primary object of a writ of error. Hoopes v. Crane, 56 Fla. 395, text 421, 47 South. Rep. 992, text 1001, and authorities there cited. So we have frequently had occasion to discuss the proper course to pursue in preparing assignments of error. Williams v. State, 58 Fla. 138, 50 South. Rep. 749, and other cases cited therein. I would add that it was never intended that assignments of error should he made to “operate a drag-net,” to quote the words used in Chicago, R. I. & P. R. R. Co. v. Moffit, 75 Ill. 524, text 529, or to be fired at the appellate court in the nature of a “broad-side challenge” to the various and sundry rulings of the trial court, if we may be permitted to borrow the forceful expression from State v. Frizell, 111 N. C. 722, 16 S. E. Rep. 409. I would also refer to 2 Ency. of Pl. & Pr., 921, 940, and authorities cited in notes. I have taken the time in this case to dwell somewhat at length npon the question of a multiplicity of assignments and to collect authorities bearing thereon, hoping that the members of the bar will heed my admonitions, that I shall not have occasion to advert to the matter again, and that I shall be saved the labor in the future.

I must respectfully but firmly decline the invitation of the defendant to discuss in detail all the assignments which are urged before us. To do so would almost require the writing of a legal treatise upon homicide, which we could hardly be expected to compass in one opinion. See Southern Home Insurance Co. v. Putnal, 57 Fla., 199, 49 South. Rep. 922, text 933, and Pensacola Electric Co. v. Bissett, decided here at the present term. All points made will be considered and those meriting it will be discussed. A number of other cases stand on our docket for disposition that are entitled to their due and proportionate share of the time and attention of the court, with as little delay as may be.

The first assignment is based upon the overruling of the defendant’s motion for a change of venue. This may be briefly disposed of. A large number of affidavits were submitted both in behalf of and in opposition to the motion. It was clearly made to appear to the trial judge, even if he could not have taken judicial • notice of the fact, that Jackson County was a large county, containing a population of about 30,000 people, of which about 6,000 are qualified for jury duty, such population being largely rural in its nature. The affidavits so submitted were very conflicting in the opinions expressed therein as to whether or not a fair and impartial jury could be obtained in such county for the trial of the defendant. With such a condition of affairs existing,, the trial judge evidently thought it advisable to exercise the judicial discretion vested in him by law, and put the matter to a test, thereby applying in a practical way the well-known proverb, “You never can tell till you try.” The result would seem to have justified the wisdom of this course, for, so far as the transcript of the record discloses to us, a fair and impartial jury was obtained for such a trial. Section 3997 of the General Statutes of 1906 expressly provides that “whenever it shall be made to appear to the satisfaction of the presiding judge of any of the Circuit Courts of this State that the venue of any cause, then pending in such courts, should be changed,” for any of the reasons therein stated, “it shall be in the power and discretion of such judge to change the venue of such case.” An appellate court should not interfere with the exercise of this discretion so vested in the Circuit Judge, unless a plain and palpable abuse thereof is made to appear. See Garcia v. State, 34 Fla., 311, 16 South Rep., 223; Shiver v. State, 41 Fla., 630, 27 South Rep., 36; McNealy v. State, 17 Fla., 198; Irvin v. State, 19 Fla., 872; Adams v. State, 28 Fla., 511, 10 South. Rep. 106; Leslie v. State, 35 Fla., 171, 17 South Rep., 555. The rule is the same in civil as in criminal cases, but we have cited only criminal cases. The discussion of the statute in O’Berry v. State, 47 Fla., 75, 36 South Rep., 440, may also prove of service. No abuse of discretion having been made to appear, I think that this assignment must fail.

The third to the eighth assignments inclusive, and the tenth and eleventh assignments are based upon the sustaining or overruling challenges for cause to certain proposed jurors, or upon matters connected with the examination of jurors upon their voir dire. Suffice it to say that an examination of these assignments and of the defendant’s brief in support thereof discloses no reversible error to me. I am not informed by the transcript by what jurors he was tried, though there is a recitation to the effect that “there being twelve men in the jury box -which had been accepted by the State, the said jury was tendered to the defendant, and the defendant having exhausted his peremptory challenges, was forced to accept the same jury to try the said cause.” I am not informed at what stage of the trial the defendant’s peremptory challenges were exhausted, neither does it affirmatively appear that any objectionable or obnoxious jurors were forced upon him. See Montague v. State, 17 Fla., 662; Andrews v. State, 21 Fla., 598; Denham v. State, 22 Fla., 664; Green v. State, 40 Fla., 191, 23 South. Rep., 851; Peadon v. State, 46 Fla., 124, 35 South. Rep., 204; Leaptrot v. State, 51 Fla., 57, 40 South. Rep., 616. As we held in Colson v. State, 51 Fla., 19, 40 South. Rep., 183, “A defendant as a matter of right is not entitled to have any particular jurors empanelled to try his case. The right of peremptory challenge is a right to reject and not a right to selectThis was approved and followed in Melbourne v. State, 51 Fla., 69, 40 South. Rep., 189. We have repeatedly held that it is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in truth exist; every presumption being in favor of the correctness of the rulings of the trial court. Putnal v. State, 56 Fla., 86, 47 South. Rep., 864, and authorities there cited. This would seem to apply with peculiar force to an assignment based upon ruling on a point resting within the discretion of the trial judge. All facts necessary to show a clear abuse of discretion to the injury of the plaintiff in error must be presented, and wherever the record is either silent or uncertain on any point material to" establish such an abuse, the presumptions are all in favor of the correctness of the ruling of which complaint is made. See Ballard v. State, 31 Fla., 266, 12 South. Rep., 865, and authorities therein cited. For the reasons already set forth I think it necessarily follows that these several assignments have not been sustained.

The fifteenth assignment is based upon the refusal of the court to permit E. J. Schell, one of the witnesses introduced on behalf of the State, to answer on cross-examination the question, “You were sworn to tell the truth and the whole truth.” I find that upon the propounding of this question the court stated, “That is not a proper way to interrogate the witness; you need not answer the question.” The exception noted to this statement of the court forms the predicate for this assignment. The witness had previously stated that he had testified at the preliminary trial of the defendant but had not stated, at such trial that he had seen any of the flashes when the pistol was fired by the defendant, that he had answered the questions propounded to him. Thereupon this question was asked. Its relevancy and materiality have not been made to appear to us. We do not think that the two authorities cited by the defendant, Jacksonville, T. & K. W. Ry. Co. v. Wellman, 26 Fla., 344, 7 South. Rep., 845, and Wallace v. State, 41 Fla., 547, 26 South. Rep., 713, are in point. As we held in Wilson v. Johnson, 51 Fla., 370, 41 South. Rep., 395, courts of justice exists for the administration and furtherance of justice and in the conduct of trials generally must be left to the discretion of the trial judge. This principle was followed and applied in Adams v. State, 55 Fla., 1, 46 South. Rep., 152. So, in Mathis v. State, 45 Fla., 46, 34 South. Rep., 287, we held that it is within the sound judicial discretion of' the trial court to control the detailed examination of witnesses, and, unless an abuse of this judicial discretion is shown, an appellate court will not disturb the ruling made concerning the same. In the light of these authorities, as well as of those previously cited, I think that this assignment fails.

The same witness was also asked on cross-examination, after it had been elicited from him by the defendant that a detective from New York had been to see him and since the preliminary trial and was with him for about five or ten minutes, “Now didn’t he tell you that money was no object?” An objection was interposed and sustained, which ruling is made the basis for the sixteenth assignment. I fail to see the pertinency or relevancy of this question. What I have said in treating the fifteenth as-' signment is sufficient to dispose of this one adversely to the contention of the defendant. I would also refer to Wallace v. State, 11 Fla., 547, 26 South. Rep., 713; Adkinson v. State, 48 Fla., 1, 37 South. Rep., 522; Baker v. State, 51 Fla., 1, 40 South. Rep., 673. The statement of the defendant’s counsel that they expected to prove that such detective told the witness that money was no object in getting up testimony in the case of itself does not make the question a proper one.

The twentieth assignment has its basis in the overruling of an objection made by the defendant to a question propounded to A. W. Calhoun, a witness for the State. After he had testified that he was a member of the coroner’s jury which had investigated how and in what manner and by whom the deceased came to his death and that the defendant had appeared before the jury and made a statement, he was asked, “Did you hear him say anything, about who killed Dr. Alexander?” The ground of the objection was that such evidence was stenographically reported and that such report constituted the best evidence. It seems sufficient to say that the question wa£ a preliminary one and therefore not open to objection. Ortiz v. State, 30, Fla., 256, 11 South. Rep., 611; Dickens v. State, 50 Fla., 17, 38 South. Rep. 909; Atlantic Coast Line R. R. Co. v. Crosby, 53 Fla., 400, text 444, 43 South. Rep., 318, text 331; Golden v. State, 54 Fla., 43, 44 South. Rep., 948; Gainesville & Gulf R. R. Co. v. Peck, 55 Fla., 402, 46 South. Rep., 1019. The case of Golden v. State, supra, will be found to be especially in point. The twenty-first assignment must also fall for like reasons, being-based upon the sustaining of an objection to a preliminary objection. The twenty-second and twenty-third assignments are also founded upon the sustaining of objections to questions propounded by the defendant on cross-examination of the same witness. Such questions sought to elicit certain declarations made by the defendant in his statement before the coroner’s jury. No error is made to appear here. They do not appear to be in cross of anything brought out' on the direct examination, nor do I see wherein the answers thereto would have been competent or proper testimony. The declarations or statements of the defendant so sought to be introduced were clearly of the nature of self-serving declarations, which we have several times held to be inadmissible. Fields v. State, 46 Fla., 84, 35 South. Rep., 185; Thomas v. State, 47 Fla., 99, 36 South. Rep., 161; West v. State, 53 Fla., 77 South. Rep. 445; Jenkins v. State, 58 Fla. 62, 50 South. Rep., 582. The twenty-fourth assignment is based upon the sustaining of an objection to the following question propounded to Fred Watson, a State witness: “Did you make an affidavit in this case on the change of venue proposition ?” There was no error in this ruling. It was not in cross of anything brought out on the direct examination and would not in itself tend to show any animus or bias upon the part of the witness. He might well have made an affidavit to the effect that in his opinion a fair and impartial jury could be obtained in that county for the trial of the defendant without having any feeling or animus toward the defendant whatever.

The twenty-sixth assignment is to the effect that the court erred in permitting J. B. Justiss, a State witness, to testify concerning certain conversations between himself and the deceased. While the bill of exceptions shows that the defendant excepted to the calling of this witness to the stand, and also shows that the defendant objected to certain questions propounded to the witness, it does not disclose that the defendant excepted to the court’s ruling on the objection, therefore this assignment is not before us for consideration. Caldwell v. State, 50 Fla., 4, 39 South. Rep., 188, and authorities there cited; Maloy v. State, 52 Fla., 101, 41 South. Rep., 791. After this 'witness had been examined and cross-examined, the defendant moved to strike out his testimony with reference to his conversation with the deceased, Which motion was denied by the court, and which ruling forms the basis for the twenty-seventh assignment. Suffice it to say that the substance of the testimony of this witness, on the direct examination, was that, on the night of the tragedy, the deceased was attending an entertainment, at which the witness sat by him, saw him go out and come back, after which he had a talk with him, and also had a word with him after the entertainment. Then the witness stated, “he (meaning deceased) asked me the way to Malcolm Stephen’s house. I directed him.” On cross-examination, the witness testified: “There was nothing said about the defendant, White. He was not present. Dr.^ Alexander did not say he was going to Malcolm Stephens’, he only asked where he lived. He expressed no purpose of going there that night.' He expressed no intention of going or reason why he wanted to go, or no reason for wanting to know where Mr. Stephens lived. He stated nothing about the defendant White in that conversation.” Then came the defendant’s motion to strike out all this testimony about the conversation. The defendant has not pointed out to us wherein this testimony was harmful to the defendant in any way and has cited no authorities in support of his contention. As I do not see wherein any reversible error was committed either in admitting this testimony or in refusing the motion to strike it out, I shall consume no further time in discussing the matter. See Wooldridge v. State, 49 Fla., 137, text 153, 38 South. Rep., 3, text 8. We would also refer to the discussion in Weightnovel v. State, 46 Fla., 1, 35 South. Rep., 856.

The twenty-eighth assignment is to the effect that the court erred in permitting George Farley to testify, over the objection of the defendant, as to a conversation between his sister and the deceased upon the night of the tragedy, the defendant not being present, while the refusal of the mo tion to strike out such testimony constitutes the basis for the twenty-ninth assignment. Assuming that error was committed in these rulings, it was rectified, later in the trial, by the court of its own motion fully and clearly directing and instructing the jury that such testimony was withdrawn from their consideration and that they were to disregard it. This disposes of these two assignments.

Malcolm Stephens, a witness called in behalf of the defendant, testified that the defendant lived right in front of him at the time of the tragedy, that he and the defendant came up toAvn together on the night the homicide occurred, that he saw the deceased for the first time that night at the school-house, that the defendant and the deceased came together to the court-house and went in the Sheriffs office, as also did the witness, where a conversation took place between the defendant and the deceased, which the witness heard. He was first asked to “state what occurred and what was said between them at that time.” The State interposed an objection and the court ruled that the question was too broad. The witness then proceeded to testify that the first thing which transpired after they had entered the office was that the defendant said to him and the deceased, “Have a seat,” and then pulled off his hat and hung it on the rack. The witness began to state what the defendant said to the deceased, when the State again interposed an objection, but no ruling seems to have been made thereon. The witness then testified that he heard the shooting that night, which took place “just about an hour” after they were at the court-house. The following question was then propounded to the witness: “What was it Jim said to Dr. Alexander when they were first seated?” The thirteenth assignment is based upon the sustaining of an objection by the court to this question. Prior to the propounding thereof, a colloquy had taken place between one of defendant’s counsel and the court, in the course of which the court had made the following statement: “It does not follow that everything that transpired must come in to explain the conduct of one or the other. If the defendant claims to have acted in self-defense, we will say for argument that he must justify that claim by occurrences that are a part of the res gestae, or by threats, or the equivalent of threats, either made in his presence by the deceased, or communicated to him as coming from the deceased. There might be a hundred and one other transactions between them that would have no bearing on the situation. Therefore, nothing should go to the jury except that which is relevant to the case. Unless it can be shown there was some relevancy in the conversation, the objection will be sustained.”

I think that the trial judge was correct in this statement. The defendant’s counsel then began to state to the court what he expected to prove by the witness, when, upon the suggestion of the State’s counsel, the court directed that the jury retire from the court-room. To this direction the defendant excepted an cl has assigned error thereon, forming the thirty-first. Other assignments are based upon similar directions for the withdrawal of the jury given at different stages of the trial. I dispose of them all by stating that this is a matter which must necessarily rest within the discretion of the trial judge, and, unless an abuse thereof is clearly made to appear, an appellate court will not interfere with such rulings. See authorities cited herein in my discussion of the fifteenth assignment.

As quite a number of assignments are based upon the sustaining of objections to questions propounded to this witness and still other assignments are of like nature, I think it advisable to copy from the bill of exceptions all the proceedings from the time of the withdrawal of the jury, of which I have just spoken, up to the close of the testimony of this witness. Such proceedings are as follows :

“In the absence of the jury counsel for the defendant made the following proffer: Mr. Price: Now then, may it please the court, we proffer to prove by this witness, in answer to the question propounded to him, that the defendant stated to Dr. Alexander, ‘Dr., this is a very serious matter I have to talk to you about tonight. Judge Liddon: We object on the grounds it is irrelevant and immaterial. The Court: Objection will be sustained. Mr. Price: Your Honor will note an exception. Mr. Wilson: We object on the further ground that it is a self-serving declaration. The Court: Go ahead and make your proffer of what you propose to prove by this witness. Mr. Price: The next question I expect to ask in the presence of the jury. The Court: You cannot have the jury trot in and out. Mr. Price: We think the jury should be present. The Court: Go ahead and make your proffer of testimony and close the whole thing up. I will state that it would appear not within the rights of any party to attempt to get before the jury something that the court decides should not go before them. That could be the only object of the counsel’s procedure. Mr. Price: We object to that remark of the court, for the reason it is calculated to prejudice the rights of the defendant. The Court: No remark made out of the hearing of the jury is calculated to prejudice the jury; nothing out of the presence of the jury is calculated to prejudice anybody. Mr. Price: We except to that remark of the court. The Court: I don’t think you can take exceptions to anything outside of the presence of the jury. Q. Did Mr. White state to Dr. Alexander what he wanted to see him about? Judge Liddon: We object to all matters of conversation and what transpired in the Sheriff’s office. The Court: I understand that the objection extends through the whole transaction, and I think it is good as to the whole transaction. Mr. Price: Defendant excepts. We offer to show by this witness at this time that the defendant, . White, stated to the Dr. that he was informed by his wife that the Doctor had made an assault upon her that morning by putting his arms around her and kissing her while in his dental office as a patient of Dr. Alexander, and while she was in the chair in the dental office; that he also stated to the Doctor at that time that immediately after the assault made by Doctor Alexander upon his wife, that his wife left the office in indignation and that he had just been informed by his wife of such assault. Judge Liddon: We make the same objection. The Court: Objection sustained. Mr. Price: Defendant excepts. Q. State whether or not Dr. Alexander at that time admitted to Jim White that he had made that assault. Judge Liddon: We object. The Court: Objection sustained. Mr. Price: The defendant excepts, and we proffer to prove by this witness that when Dr. Alexander was brought face to face with White, and the statement made to him that White had been informed by his wife that Alexander then and there admitted that he made the assault on his wife as claimed by her, and told to the defendant by the defendant’s wife. Judge Liddon: We make the same objection. The Court: The objection is sustained. Defendant excepts. Mr. Price: State whether or not at that time Dr. Alexander offered any apology on excuse as to why he assaulted the wife of the defendant. Judge Liddon: We make the same objection. Mr. Price: The defendant excepts. We proffer to prove by this witness that Dr. Alexander stated' at that time that he could not say to save his life why he had made the assault upon the wife of the defendant, and further stated, ‘you know we are all men, we have our passions,’ and that was the only reason he could give for doing as he had done, and he offered that as a palliation of his offense of making the assault upon the wife of the defendant and kissing her in his office while there as a patient. Judge Liddon: We object on the same grounds. The Court: The objection is sustained. Mr. Price: The defendant excepts. Mr. Wilson: We object upon the further ground that there is no predicate at this stage of the case for such testimony. Mr. Price: State whether at that time Alexander promised he would never be guilty of the same offense as against the wife of the defendant. Judge Lid-don : We object on the same ground. The Court: The objection is sustained. Mr. Price: The defendant excepts. We offer to prove by this witness that at that time Dr. Alexander stated to the defendant that if he would forgive him at this time he would not ever be guilty of a like offense. Judge Liddon: We object on the same grounds. Mr. Price: The defendant excepts. Q. State whether or not you had any conversation with Dr. Alexander at that time about what he had done towards the wife of the defendant. Judge Liddon: We object on the same grounds. The Court: The objection is sustained. Mr. Price: The defendant excepts. We expect to prove in answer to that question, by this witness, that he asked him, 'Doctor, how in the name of God did you come to do this,’ and that the Doctor told the witness that to save his life he could not explain; that he was a human being, a man, and had passions similar to other men, and that was the only explanation' he could offer; that he was ashamed of his actions and that he would not ever be guilty of it again; and that he further stated, 'For the soul of me, I can’t tell why I did this, it was one of those human weaknesses.’ Judge Liddon: We object on .the same ground. The Court: The objection is sustained. Mr. Price: The defendant excepts. Q. State whether or not during the conversation there was any personal difficulty between the defendant and Dr. Alexander. Judge Liddon: We object on the same grounds. The Court :• The objection is sustained. Mr. Price: The defendant excepts. We proffer to prove by this witness in answer to this question that at that time there was a personal difficulty between the defendant and Dr. Alexander and that in the difficulty the defendant struck Alexander one or two licks with his hand; that they were then separated by the witness. Judge Liddon: We object on the same ground. The Court: The objection is sustained. Mr. Price: The defendant excepts. Q. State whether or not in the room at the time spoken of, if you know, Jim White had a pistol on his person. Judge Reeves: We object on the same ground. The Court: The objection is sustained. Mr. Price: The defendant excepts. In answer to the above question we proffer to prove by this witness that during the altercation in the room that Jim White had a pistol in his pocket. Judge Liddon: We make the same objection. Mr. Price: The defendant excepts. Q. State whether or not at that time White made any offer or attempt to draw that pistol and present it on Alexander or shoot Alexander or to throw any weapon in his face. Judge Liddon: We object on the same ground. The Court: The objection is sustained. Mr. Price: The defendant excepts. We proffer to prove by this witness, in answer to this question, that at that time White had a pistol in his pocket; that he simply struck at the deceased with his fists, made no effort or demonstration to draw that pistol upon Alexander. Judge Lid-don: We object on the same grounds. The Court: The objection is sustained. Mr. Price: The defendant excepts. Q. State how long Dr. Alexander then remained in the office. Judge Liddon: We object on the same ground. Mr. Price: The defendant excepts. We proffer to prove by this witness that immediately after the difficulty Dr. Alexander stated that he wanted to go back to the school house and then the defendant got up and opened the door and permitted him to leave; that the deceased then left for the school house so far as the witness was able to see. Judge Liddon: We make the same objection. The Court: The objection is sustained. Mr. Price: The defendant excepts. Q. State whether or not in that conversation, or at any time there, any statement was made by the defendant to Alexander that he was going to publish him to the people of Marianna for making an assault upon his wife, the next day? Judge Lid-don : We object. The Court: The objection' is sustained. Mr. Price: The defendant excepts. We proffer to prove by this witness that when Alexander left the defendant told him, ‘Doctor, I am more surprised at you than any man I know of; I would .have suspected any other man in town to have made this assault before I would have expected you. I can’t afford, since you have made this assault, for you to remain in the town of Marianna, and I shall publish this action to the people of Marianna to let them know the character of man you are to make assaults upon women who visit your office for dental purposes.’ Judge Liddon: We object on the same grounds. The Court: The objection is sustained. Mr. Price: The defendant excepts. Q. State whether or not the deceased, Alexander, begged the defendant at that time not to publish him for the assault he had made? Judge Liddon: We object on the same grounds. The Court: The objection is sustained. Mr. Price: The defendant excepts. We proffer to prove that Alexander said, ‘For the love of God, Jim, don’t publish me in the town of Marianna ;-it will ruin me and I cannot afford to have it done; I have tried to live right; I have been living here in town a long time and I don’t want this thing to come out.’ Judge Liddon: We object on the same ground. The Court: Objection sustained. Mr. Price: Defendant excepts. Q. State whether or not in that conversation, or any part of it, there was any agreement or understanding between the defendant and Dr. Alexander that they were to meet and discuss this matter later; Judge Liddon: We object on the same ground. The Court: Objection sustained. Mr. Price: Defendant excepts. We proffer to prove in answer to this question that there was no agreement or understanding between the defendant, Jim White, and Dr. Alexander to meet any subsequent time to talk the matter over, or to take any further action between themselves with reference thereto. Q. State whether or not there was any agreement or understanding between you and Dr. Alexander that he was to go to your house or to see you or consult with you on the night of the homicide after leaving the court-house? Judge Liddon: T suppose that would be in the same shape. The Court: Yes. Mr. Price: Do you object to it ? Mr. Wilson: Yes, but the court has overruled our objection. Q. State whether or not there was any engagement of any kind whatever between yourself and Dr. Alexander for a meeting that night? Judge Liddon: Same objection. The Court: Objection sustained. Mr. Price: Defendant excepts. Q. State Whether or not there was an engagement or understanding between Jim White and the deceased entered into while you were present as to any subsequent meeting or conversation. The Court: You have asked that once. Mr. Price: It is a different question. Judge Liddon: Same objection. The Court: Objection sustained. Mr. Price: Defendant excepts. Q. State whether or not you saw Alexander any more that night until after the homicide. The Court: I think that is a proper question. Mr. Kehoe: We now ask leave of the court to propound to the witness in the presence of the jury, and permit the witness' to answer in the .presence of the jury, each of the questions propounded- during the absence- of the jury, in the court’s discretion. The Court: There are certain questions which can be asked. Mr. Price: This applies to each and every question. The Court: The motion is overruled. Mr. Price: Defendant excepts. We now ask the court to indicate to us each of the questions he will permit us to ask the witness in the presence of the jury. Mr. Kehoe: We will endeavor to propound those questions, if the court will permit us. At this point the reporter was requested to read the questions propounded in the absence of the jury, and which the court had ruled were admissible. The jury return to the box. The Court: The stenographer can read the questions. Q. State whether or not there was any agreement or understanding between you and Dr. Alexander that he was to go to your house or to see you or consult with you on the night of the homicide after leaving the court house. A. No, there wasn’t. Q. State whether or not there was an engagement or understanding between Jim White and the deceased entered into while you were present as to any subsequent meeting or conversation? A. No, there was not any engagement made; Jim told me it wasn’t necessary to go down. Q. State whether or not you saw Dr. Alexander any more that night until after the homicide? A. No ma’am, I didn’t. The reporter having read the questions and the witness having answered them, the counsel then asked the following questions : Q. Now you say that Jim White told the deceased it wasn’t necessary to come down to his house? A. I did. Q. For what purpose was he coming down there? A. He offered to come down there to apologize to his wife. Judge Liddon: We object on the same grounds. The Court: Objection sustained. Mr. Price: Defendant excepts. We proffer to prove by this witness-. Judge Liddon: We object to his stating what he proffers to prove in the presence of the jury. The Court: The jury will have to retire. Mr. Price: Your Honor will note an exception. We proffer to prove by this witness, in answer to that question, that Alexander offered to come down to White’s house and get down on his knees and beg Mrs. White’s pardon for making an assault upon her, and that in answer to that offer Mr. White told him it wasn’t necessary. We think it is admissible for the further reason that your Honor has permitted the witness for the State to testify that Alexander said he had an engagement, and that the witness testified that Alexander had made inquiries as to the residence of Malcolm Stephens, and it is certainly admissible for the purpose of showing that Alexander could not have said that there was any engagement between himself and White or between himself and Stephens, or any obligation upon him to come down there at 10 o’clock at night and make any apologies to Mrs. White. Judge Liddon: We object. The Court: Objection sustained. Mr. Price: Defendant excepts. The jury returns to the box. Dr. Alexander, Mr. White and myself were together at the court room about thirty minutes. Alexander left first. There was no agreement or understanding between White and Alexander that there should be any subsequent meeting. I suppose White left in a minute after Alexander did, maybe two minutes; it was a very short time. I came down stairs with Mr. White. We walked down these steps and went up town and I went home. The next time I saw Jim was after the homicide. I heard the shooting; I had not gone to sleep. I don’t know how much time exactly had elapsed from the time White and Alexander had separated at the court house until I heard the shooting; I would fix the time anywhere from fifteen to thirty minutes. I had been home some little bit, I suppose about three-quarters of an hour, refreshing my memory. I though the first firing was the whole round, but I am convinced it wasn’t. It was very rapid. (Witness indicated how the shots appeared to him by slapping his hands together.) The first three were rapid; there was a slight pause between the third and fourth, and between the fourth and fifth. The first three were so rapid you could hardly distinguish one from the other. I was out on the streets that night after the homicide was committed. I know where a large oak tree stands. It was dark around that tree. Thereupon the following question was asked: ‘Could a man coming down the street see a man about that tree in a distance?’ Judge Liddon: We object. The Court: No, that would be an opinion of the witness. Mr. Price: Defendant excepts. The light from the electric light at the far corner showed very little light under that tree. It was dark there, and it was a cloudy night.

Cross Examination.

When I say there was no agreement for a meeting after they were here at the Sheriff’s office together, I mean there was none that I know of. I didn’t stay with White any more after we left the court house. I know that Jim White went to the academy that night. I went with him. I suppose that Alexander came here to the court house at the request of Jim White. I did not come with them, I was on ahead of them; when I saw them coming out of the academy I came on ahead. I heard some hollowing while the shooting was going on. It was screaming; I think between the fourth and fifth shots I heard him say, ‘Jim, don’t kill me.’ I heard the screaming between the third and fourth shots. There were three shots fired rapidly, and immediately after that I heard the screaming. I couldn’t tell anything that was said, it was just hollowing out loud. After the fourth shot I heard him say, ‘Jim don’t shoot me,’ or don’t kill me, one of those remarks. That was just before the last shot and that was the last I heard of the hollowing or screaming. ,

Redirect Examination.

I was ahead of Mr. White and Dr. Alexander coming back from the academy; I suppose I was twenty-five yards ahead. That is an estimate. There was nobody else along with White and Alexander, they came down by themselves. They came up in the Sheriff’s office. I heard some shooting and I heard some hollowing down there where the shooting took place. I was just across the street from there, and I think the streets are sixty feet wide. If there was any remark made as ‘Men, please don’t let them kill me,’ I didn’t hear it. I don’t think the street is over sixty feet wide. I was sitting up at the time.

Récross Examination.

I am related to the defendant. I am his brother-in-law.”

The thirty-second to the forty-fourth • assignment inclusive are all based upon the rejection of proffered testimony of this witness. I shall consider, them all together, in that declining to follow the example of defendant’s counsel, who have argued them all separately. I shall not enter upon any extended discussion. Suffice it to say that, after a careful consideration thereof, no reversible error has been made to appear to me. Much of the proffered testimony related to self-serving declarations and acts of the defendant, as to which I refer to what I have already said in discussing the twentieth assignment. See authorities there cited, especially West v. State, 53 Fla., 77, 43 South. Rep., 445. Some of such testimony was clearly immaterial and not pertinent to the case. I do not think that any of the conversations and acts which took place in the Sheriff’s office, as offered to be proved by the witness could be properly said to form a part of the res gestae, so as to render the same admissible. I do not see their connection with the homicide. See Stitt v. State, 91 Ala., 10, 8 South. Rep., 669, 24 Am. St. Rep., 853; Patterson v. State, 156 Ala., 62, 47 South. Rep., 52; Raines v. State, 81 Miss., 489, 33 South. Rep., 19, which was approved and followed in Hughes v. State, , Miss., , 38 South. Rep., 33. I recognize the fact that there is some conflict in the authorities, and I have carefully examined those cited to us by the defendant, but, in the light of our own decisions, I am of the opinion that these assignments have not been sustained.

For like reasons, I think that the assignments numbered from forty-five to fifty inclusive must fail, all being based on the exclusion of certain testimony sought to be elicited by the defendant from Jim Lewis.

The fifty-first, fifty-second and fifty-fourth assignments question the rulings of the court in refusing to permit W. A. Lewis, one of the defendant’s witnesses, to answer certain questions propounded to Mm on Ms direct examination. The witness had testified to having had a talk with the defendant in front of Alderman’s store on the night of the tragedy froto ten to twenty minutes prior to the time the witness heard the shooting, which resulted in Dr. Alexander’s death. He was then asked to “state what was said in that connection.” The objection was properly sustained thereto. What I have said just after disposing of the twenty-eighth assignment, in discussing the assignments based upon proffered testimony of Malcolm' Stephens, is alike applicable here. This also applies to the fifty-second assignment, wMch was based upon the court sustaining an objection to the question, “What was that conversation,—what was said by White in that conversation about Dr. Alexander?” Prior to the propounding of that question, the witness had testified that the conversation with the defendant to which he referred was concerning Dr. Alexander. I think that each of these questions was too broad. ■ I am all the more impressed with the correctness of the conclusion which I have reached after reading the statement of the defendant’s counsel as to what they expected and proffered to prove by such witness. Much of it was in the nature of self-serving declarations by the defendant, as to wMch I have already expressed my opinion and cited authorities. The jury had been withdrawn under the direction of the court, while the defendant’s counsel stated what they expected the witness to testify to in response to the questions to which the State had objected. Certain proceedings then occurred which I think it advisable to copy from the bill of exceptions for the proper understanding of this opinion. They are as follows:

“(Thereupon the jury was recalled and the taking of testimony resumed.) In the conversation I had with Mr. White on the night of April 12th, in front of Alderman’s store, he did say something about what he would do if Dr. Alexander didn’t leave town. He said if Dr. Alexander didn’t publish in the paper his apologies to the people of Jackson county, in the town of Marianna, that he had to leave town. He did not say anything to the effect that if Dr. Alexander didn’t leave town that night there would be a dead man in Marianna next morning. Thereupon the following question was propounded: Did he or not say his apologies for what? Judge Liddon: We object. The Court: The objection is sustained. Defendant excepts. Mr. Kehoe: We proffer to prove-Judge Liddon: We object to his stating what he expects to prove in the presence of the jury. The Court: You have that already in the record. Mr. Kehoe: If the court please, we think not, we think it necessary to offer it now. The Court: This constant moving to and fro of the jury is a hardship; I don’t think it is necessary. I can see how it can be avoided and I don’t see why counsel can’t see it. Of course, the jury must retire again if you are going to make another proffer. Mr. Price: We except to the remark of the court, that the court don’t see any necessity for the jury retiring. We don’t ask that they shall retire. Mr. Wilson: Then the State does ask that they retire. Thereupon the jury retired. The Court: I will say now that the remarks last made were not necessary, and were made evidently to create a false impression on the jury, that the court was responsible for the situation existing; it is not exactly fair to the court. I have indicated a line of procedure that will obviate this and not sacrifice a single light of the defendant. Mr. Kehoe: Will the court permit me to address the court? I will assure the court that the remarks made were not for the purpose of getting anything improperly before the court and the jury, and we do not think it is1 a fair criticism in the presence of the jury dr in their absence; we know that your Honor has a broad discretion in matters of this kind; we have absolute confidence in the faith of your Honor, but we do frankly believe that you are abusing that discretion, and in taking an exception to the ruling of the court, we do so in the knowledge that there will be an opportunity for the Supreme Court to say whether or not your Honor has abused this discretion. The Court: The court has no intention of depriving you of a single right, but counsel in their zeal for their client’s interest—and it is a commendable zeal— ought to sometimes think of the rights of the court; counsel make remarks, whether intended or not, which have the effect of reflecting on the court or the court’s fairness; sometimes it is in the manner; sometimes it is in the tone of the voice. Counsel have no right to forget that the court has rights as well as counsel; all the rights are not with the practitioner. Mr. Kehoe: I think the court will concede that everything we have said has been said in a respectful manner. The Court: Counsel owe it to the court to assist in facilitating causes; there are hundreds of cases pending in the courts and litigants have a right to their fair share of the court’s time, and it is the duty of counsel to save as much time as possible. It is for that purpose that the court has made suggestions; the weather is hot, everybody is tired out, and the court thinks it has not had as much assistance from counsel in the way of facilitating business as it ought to have. Mr. Kehoe: We have tried to be respectful; if we haye failed we regret it. We honestly believe the court is wrong. We would be false to our client and false to ourselves if we allowed an undue respect for the court to cause us to neglect our client’s interests, to sleep over our rights. I will state, if at this time, or at any time, the court thinks I have failed in respect to the court, I will gladly apologize, but so far as not registering exceptions to the rulings of the court when we think the court is in error-The Court: I have not asked for apologies or claimed any were due. Mr. Kehoe: In response to the last question we expect to prove that he said he must publish his apologies in the paper for having made an assault on his wife, White’s wife, or leave town. That is the answer we expect to elicit. Mr. Wilson : We object to the question, and what they expect to prove. The Court: The objection is sustained. Mr. Kehoe: The defendant excepts. (The jury return to the box.) ”

The defendant earnestly contends that the proffered testimony was admissible by virtue of the fact that as' the State had introduced a portion of the conversation referred to by T. G. Alsobrook, therefore he was entitled to have go before the jury the other parts thereof, so that they would have the benefit of the entire conversation. I find that the witness Alsobrook had tes