Whitfield v. State , 85 Fla. 142 ( 1923 )

West, J.

The defendant, Homer E. Whitfield, alias W. H. Jackson, plaintiff in error, was jointly indicted with Edna Tompkins upon a charge of unlawfully and feloniously living together in an open state of adultery. Upon motion of the state attorney there was an order of severance, after which plaintiff in error was tried and found guilty as charged. Writ of error was taken to review the judgment imposing the sentence upon him.

Before entering his plea defendant moved to quash the indictment. The alleged legal insufficiency is that the indictment charges the offense to have been committed “on the 1st day of August,” 1920, and does not allege that it continued from day to day for a longer time than one day or until some other given date. The motion was denied and this ruling is assigned as error.

The contention upon this assignment is that the offense •alleged is of such a nature that it cannot be committed upon a single day, the theory being that the alleged living together, in order to constitute the crime denounced by the statute, must extend over a period of more than one day, that the indictment must so allege, and if not, it is defective and amenable to a motion to quash if.seasonably made. The same question is presented by the motion in arrest of judgment. The authorities are to the effect that the offense alleged in the indictment may be committed in a single day, and that “since its complete perpetration in a single day is'legally possible, it may equally well be charged as on one day, and the proof may be of acts done on any number of days.” There was, therefore, no error in the rulings denying the motion to quash and the motion in arrest of judgment. Bishop on Stat. Crimes, 3 ed., Sections 697, 703; Bishop’s Directions and Forms, Sections 81, 152; Bishop’s New Crim. Proc. Section 397; State v. Glaze, 9 Ala. 283; Hall v. State, 53 Ala. 463; Walker v. State, 104 Ala. 56, 16 South. Rep. 7; State v. Briggs, 68 Ia. 416, 27 N. W. Rep. 358; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410, note; Spencer v. State (Okla.) 169 Pac. Rep. 270, L. R. A. 1918F, 592.

Defendant’s wife was called as a witness for the State. Before she was examined defendant’s counsel announced that he was authorized by the witness to claim for her the asserted privilege to decline to testify against her husband, the defendant, and upon that ground he objected to the witness testifying in the case. This objection was overruled and the witness was required to testify. Being examined, she testified that she was the wife of defendant, that she was married to him upon a date long anterior to the time when the offense charged in the indictment was alleged to have been committed, and that the marriage relation and cohabitation had continued unbroken to the time of the trial. Her examination was limited to an inquiry upon this point. It was not sought to-have the witness disclose anything in the nature of marital communications between herself and her husband, the defendant. If the defendant was her husband the allegation in the indictment that he was not married to his alleged particeps criminis at the time the offense alleged was committed was .proved. It was a very direct way of proving an essential fact and there was no impropriety in the ruling admitting it to be proved in that way. Secs. 2706, 6018, Rev. Gen. Stat. of Florida; Ex parte Beville, 58 Fla. 170, 50 South. Rep. 685; Ferrell v. State, 45 Fla. 26, 34 South. Rep. 220.

During the trial a number of witnesses on behalf of the State were permitted to'testify over objections of defendant that the parties charged in the indictment lived together in the manner alleged on other days and at different times from the date stated in the indictment. It is urged that there was error in the trial court’s rulings admitting this evidence. The contention is that the State should have been limited in its proof to the date alleged in the indictment. It appears from the record that the acts testified about were prior to the finding of the indictment.and within the statutory period of two years. This court has recently held to the contrary of the contention made upon this feature of the ease. In Parramore v. State, 81 Fla. 621, 88 South. Rep. 472, the court said: “The indictment charged that upon the day named the defendants were guilty of habitually living in and occupying the same room in the night time. In its nature the offense was a continuing one. The indictment merely stated a condition of life existing on that day as to the two people involved. To prove the allegation it was of course necessary to show that prior to the date alleged in the indictment the habit had been formed and' was practiced by the two people within the two years preceding the date alleged in the indictment.” The rulings complained of are in accord with this authority. There was, therefore, no error in receiving in evidence this proof.

There are assignments of error predicated upon the trial court’s refusal to give certain requested instructions to the jury and in modifying other instructions, before giving them as requested, to the jury.

The first requested instruction was given without modification. The second, third and sixth were refused. To the refusal to give these there was a general exception. The second is clearly bad in that it sought to restrict the State in its proof, in order to sustain a conviction, to the date named in the indictment. ■ The fallacy of this theory has been pointed out. Under the rule that where there is a general exception to a refusal to give several requested charges the ruling will not be held erroneous if a single charge was- properly refused, this assignment cannot be sustained. Hobbs v. State, 83 Fla. 480, 91 South Rep. 555; Moore v. Lanier, 52 Fla. 353, 42 South. Rep. 462; Griffin v. State, 48 Fla. 42, 37 South. Rep. 209; Gass v. State, 44 Fla. 70, 32 South. Rep. 109; King v. State, 43 Fla. 211, 31 South. Rep. 254.

The modification of the fourth simply eliminated a statement of the case which was contained in the general charge. It was therefore immaterial. The same is true with respect to the first sentences stricken from the fifth and eighth. Other portions stricken from the fifth and the stricken portions of the seventh are covered by the general charge. There was, therefore, under the rule that it is not error to refuse to give charges already substantially given, no error in so modifying the charges requested as to prevent repetition of the same charge. Witt v. State, 80 Fla. 38, 85 South. Rep. 249; Blackwell v. State, 79 Fla. 709, 86 South. Rep. 224; Dixon v. State, 79 Fla. 586, 84 South Rep. 541; Lockhart v. State, 79 Fla. 824, 85 South. Rep. 153; Hall v. State, 78 Fla. 420, 83 South. Rep. 513. The last sentence eliminated from the eighth is clearly improper, hione of the assignments based upon the rulings refusing to give instructions are sustained.

The order denying the motion for new trial presents the question of the sufficency of the evidence to sustain the verdict. A recital of the evidence would be of no benefit. It is considered sufficient to support the verdict and there is nothing in the record to indicate that the jury were influenced by anything outside the evidence. The judgment will be affirmed.

Affirmed.

Taylor, C. J., and Whitfield and Ellis, J. J., concur.