Gantling v. State , 40 Fla. 237 ( 1898 )

Carter, J.:

I. After the jury was empanelled and sworn, but before any evidence was offered, the defendant moved the court to require the State Attorney to elect between the first and second counts of the indictment, and to designate the count upon which he intended to rely for a conviction. In overruling this motion the court committed no error, as both counts related to the same transaction, and were framed to meet various aspects in which the evidence might present itself. Murray v. State, 25 Fla. 528, 6 South. Rep. 498.

II. The remains of Lilly Gantling were discovered on Sunday. The coroner’s jury was in session that day and also the following day, Monday, and many people went to and from the place where the remains were discovered on these days. The remains were found in a swamp or bay near Jasper, an isolated spot grown up with bushes and thick undergrowth. On Monday morning a piece of black oil-cloth, considerabfy worn and of unusual size, was discovered among the bushes in the bay near the remains, but further in the swamp. Between the oil-cloth and the remains several bushes were broken; the broken bushes extending from the cloth in the direction of and about half the distance to the remains. There was evidence tending to show that this oil-cloth belonged to defendant, and that he had frequently used it in connection with the operation of his public conveyances. The defendant objected to evidence concerning the broken bushes and the oil-cloth on the ground that same was irrelevant, and because the persons testifying about the oil-cloth were not present when it was found. As to the last ground of this objection there was evidence tending to show that although the witnesses were not present when the cloth was first discovered, yet they saw it before it had been moved; that around it the ground was dry, but underneath it the ground was damp when they first saw.it. We think this evidence was sufficient to admit their testimony. As to the first ground of objection there was evidence tending to show that this oil-cloth was owned by defendant at the time his daughter disappeared; that on the night in August when distressing female screams were heard in the direction of this bay it was raining; and it is a matter of common knowledge that an oil-cloth is an article capable of use as a protection from rain. We think the circumstance of its being found near the remains with indications by broken bushes of the passage of some animate object between the oil-cloth and the remains, while inconclusive, yet tended in some degree to connect the defendant with the crime charged, and was, therefore, admissible in evidence. Reynolds v. State, 34 Fla. 175, 16 South. Rep. 78; Jenkins, McRae and Clinton v. State, 35 Fla. 737, 18 South. Rep. 182.

III. Jim Yates, a witness for the State, testified that he saw a part of the clothing found with the remains; that he saw splotches or stains of some kind about this clothing which he supposed was blood — he felt confident that it was blood. The defendant objected to this latter statement as being a mere conclusion of the witness. The court ruled that unless the witness was an expert he could not testify that the stains were blood stains, but that he could give the color of the stains and the jury could draw its own conclusions. The witness then stated that he was not an expert — that the stains were of a yellow, or reddish color- — -they had been there so long that they were not the color of blood. The defendant then moved to strike out the entire testimony of this witness, on the ground that his testimony was expert testimony given by a non-expert witness. The court properly overruled this motion. All of this witness’ testimony was not expert.' It requires no expert knowledge to enable one to know that there are stains upon clothing, nor .their color, where they are visible to the eye. These are matters open to common knowledge and common observation.

IV. It is insisted that the court erred in admitting evidence of defendant’s alleged confession to the witness Dick Hill. The objections interposed were that “defendant was induced by a hope of betterment to talk to witness, and because the same was not perfectly free and voluntary, and was otherwise clearly inadmissible in evidence according to law.” The last ground was so general, vague and indefinite that it demanded no serious consideration from the court. The court was justified in overruling it because of its generality. Carter v. Bennett, 4 Fla. 283; Gladden v. State, 12 Fla. 562; Withers, Admr. v. Sandlin, 36 Fla. 619, 18 South. Rep. 856. The other grounds of objection were properly overruled because there was no testimony whatever tending to show that this alleged confession was not perfectly free, and voluntary, or that it was made in consequence of a “hope of betterment.” On the contrary, Hill testified that defendant made this confession at his own home prior to his arrest; that he voluntarily began the conversation which led up to the confession by stating that trouble had come upon him, and he further testified that no inducements whatever were held out to defendant to procure the confession. Where it is shown that a confession was freely and voluntarily made, that no improper influenees were exerted to induce it, the court commits no error in admitting evidence of such confession. Holland v. State, 39 Fla. 178, 22 South. Rep. 298, and authorities cited.

V. The court erred in giving that portion of the charge numbered 1. Under the legal maxim falsus in uno, falsus in omnibus, a jury may disregard the entire testimony of a witness where such witness has wilfully and knowingly or corruptly sworn falsely to- a material fact in the case (Thompson on Trials, §§2423, 2424; 29 Am. & Eng. Ency. of Law, p. 780 et seq.), but they are not required to do so; neither does the law attach any such condition or qualification to the rules as prevents its operation in cases where the false witness is corroborated by some circumstances proven, or by the testimony of some other credible witness in the case. The court may properly advise the jury that they may disregard the entire evidence of such a witness, and that in determining whether they will disregard it, or what weight they shall give to it, they may take into consideration the fact that such witness is or is not corroborated by other credible evidence in the case. The instruction under consideration was calculated to impress the jury with the idea that the law would not permit them to discard the entire testimony of such a witness, where he was corroborated by some circumstances or another credible witness in the case, and it was, therefore, erroneous. Newberry v. State, 26 Fla. 334, 8 South. Rep. 445.

VI. For reasons similar to those mentioned in the preceding paragraph of this opinion, the court erred in giving that portion of the charge numbered 2 which was excepted to. It is for the jury to determine for themselves whether they believe the testimony of a witnéss whose general reputation for truth and veracity is proven to be bad, and they have that right even though the impeached witness may be corroborated by circumstances proven, or by the testimony of other credible witnesses. The court may properly advise the jury that they have a right to reject the testimony of any witness whose general reputation has been proven to be bad; and that in determining whether they will disregard it, or what weight they shall give to it, they may take into consideration the fact that such witness is or is not corroborated by other credible evidence in the case. Thompson on Trials, §2426. The latter clause of this charge was not justified lay any evidence in the record. There is nothing in the evidence showing that the witnesses sought to be impeached in this case had numerous neighbors, or that they had any neighbors other than those whose names were mentioned by the impeaching witnesses.

VII. The language embraced in that portion of the charge numbered 3, to the effect that the humane provisions of the law were designed to protect innocent persons wrongfully charged with crime from being unjustly convicted, and not to enable guilty persons to escape punishment for crime if they were shown to be guilty by the evidence, following immediately after and in connection with the instruction as to reasonable doubt, was calculated to impress the jury with the idea that there was a qualification to the rule given them upon the subject of reasonable doubt, and that if they believed from the evidence that defendant was guilty, he was not entitled to the benefit of that rule. It is a positive legal right, appertaining to every accused person, whether guilty or innocent, that he shall not be condemned for a criminal offense in a judicial trial, until and unless the evidence produced against him shall be legally sufficient to prove his guilt beyond a reasonable doubt. Although the jury may believe that the accused is guilty, and this belief may be justified by a preponderance of the evidence, they must, nevertheless, accord him the benefit of the legal presumption of innocence until that presumption is overcome by evidence showing guilt beyond a reasonable doubt. It matters not that the rule was designed in order to protect innocent persons ; it is general in its operation, embracing every person accused of and on trial for a crime, and the courts have no right to qualify this rule or disparage it in the estimation of juries by instructing them that it was designed for the benefit of innocent and not guilty men. The object of the law is to furnish every man a fair and impartial trial, according to general and uniform rules; and in such trials and the application of its principles the law knows no distinction between the innocent and the guilty until the guilt of the latter has been ascertained by that quantum of evidence which satisfies beyond a reasonable doubt.

VIII. At the close of the evidence the State Attorney abandoned the first count of the indictment, and asked for a verdict upon the second count only. The charge numbered 4 was entirely correct as applied to the evidence under the second count of the indictment, except that the words “beyond a reasonable doubt” should have been substituted for the words “under these instructions.”

IX. That portion of the charge numbered 5, excepted to tested by our previous decisions, was erroneous, because calculated to impress the jury with the idea that they could arbitrarily or capriciously accept or reject any part of a confession. In Metzger v. State, 18 Fla. 481, this court approved an instruction to the effect that confessions when made without any effort to obtain them, either from fear or promises of reward in any manner, or when made freely, without inducement or threat, are strong evidence against a party when unexplained or not denied; but such an instruction could have no application to the facts of this case, because the defendant denied making the confessions sought to be proved against him. It is true that pertinent confessions when freely and voluntarily made are evidence tending to prove guilt, to be .considered by the jury with all the other evidence given on the trial. The jury are to determine the credence which shall be attached to the confession and every part thereof; they are to give it a fair and unprejudiced consideration. The confession should be taken as a whole; the time and circumstances of its making, its harmony or inconsistency in itself, or with the other evidence in the case; the motives which may'have operated on the party in making it, should all be fairly considered by the jury, and then they should give etlect to such parts as they find sufficient reason to credit, and reject all that they find sufficient reason to reject; but they should not give effect to any part or reject any part arbitrarily or capriciously. This is the rule laid down by us in Marshall v. State, 32 Fla. 462, 14 South. Rep. 92, and tested by this rule the instruction under consideration was erroneous.

X. We perceive no error prejudicial to the defendant in that portion of the charge numbered 6. The entire instruction is in harmony with our previous decisions. Indeed, it states the rule somewhat stronger in favor of the accused than our previous decisions have gone, and perhaps stronger than the law requires, but the error in this, if any, is favorable to the accused and he is in no position to complain of it. Tested by the principles announced in Jenkins, McRae and Clinton v. State, 35 Fla. 737, 18 South. Rep. 182; Whetson v. State, 31 Fla. 240, 12 South. Rep. 661; Kennedy v. State, 31 Fla. 428, 12 South. Rep. 858, and Whitfield v. State, 25 Fla. 289, 5 South. Rep. 805, it will be found that the instruction gave the defendant the full benefit of the law.relating to the weight and sufficiency of circumstantial evidence, and that the part embraced in brackets, as to which particular exception is taken, was correct.

XI. The second instruction requested by the defendant was properly refused. Among other things it instructed the jury “you are charged that said pretended confessions are not corroborated by other circumstances sought to have been proven, or vice versa; that said circumstances do not corroborate the said alleged confession.” A more glaring violation of the rule which prohibits the judge from charging on the facts, or as to the weight and sufficiency of the evidence, than that presented by this instruction can scarcely be imagined.

The other questions raised by the assignments of error will not necessarily arise upon another trial, and for that reason we do not consider them.

The judgment of the Circuit Court is reversed and a new trial granted.