Page images
PDF
EPUB

Every respect is due from the courts to the enacted opinion of the legislature on a constitutional question, but we do not understand that such opinion is to be considered in all cases as final. It cannot be doubted that the decision of the court in this case meant this, if not so directly expressed.

The basis of the petition for a rehearing is therefore not well taken, and a rehearing is denied.

REDDICK V. STATE.

(Supreme Court of Florida. January 21, 1889.)

1. CRIMINAL LAW-EVIDENCE-CHARACter.

In all cases where a man is on trial, accused of crime, he has the right to introduce evidence to show his general good character or reputation, but the evidence is to be confined to general reputation, and particular acts of good conduct on the part of the accused cannot be shown in evidence, and the same rule applies to the prosecution. The prosecution cannot put in issue the character of the accused, but, when the accused himself puts his character in issue, the state has the right to introduce evidence in rebuttal to show that the general character of the accused is base, but the evidence so introduced by the state, or evidence brought out on crossexamination by the state, must be confined to the general character of the accused, and, if particular acts of bad conduct on the part of the accused are allowed in proof, such proof is illegal, and cause for reversal.

2. HOMICIDE-Murder-MISNOMER OF DECEASED.

The plaintiff in error was indicted for the murder of Henry Churchill, and there was evidence at the trial to show that the name of the deceased was Churchwell, and there was evidence to show that the deceased was as well known by the name of Churchill as by Churchwell, his true name. Held that, independent of the names being idem sonans, there was no error in the verdict of conviction.

3. TRIAL-INSTRUCTIONS-MATTER ALREADY GIVEN.

Where counsel for the accused requested the court to charge the jury, and the charge requested by him had already been (substantially) given by the court, the court was not required to repeat the charge.

MAXWELL, J., dissenting.

(Syllabus by the Court.)

Error to circuit court, Duval county; JAMES M. BAKER, Judge.

Frank W. Pope, for plaintiff in error. The Attorney General, for the State.

MITCHELL, J. The plaintiff in error was tried at the spring term of 1886for the murder of Henry Churchill, and convicted of manslaughter in the second degree. Motion for new trial was entered and overruled, and plaintiff in error sentenced to the state penitentiary for the term of five years, and the case is now before this court upon writ of error.

The first error assigned is: "The court erred in overruling the objection of counsel for defendant to that part of the testimony of John Ligon, as follows: Two years ago I chased defendant out of Georgia. I was deputysheriff of Brooks county, in that state, at the time, and had a warrant for his arrest. He was charged with assault with intent to murder. I chased him into Madison county, and there lost track of him."" The record sent to this court shows that the plaintiff in error at the trial introduced evidence tending to show his good character, and it shows that the evidence of John Ligon was introduced by the state in rebuttal of the evidence so introduced by the plaintiff in error; which evidence, so admitted, on cross-examination, showing or tending to show a particular act on the part of the plaintiff in error, and tending, to some extent at least, to break down the good character the plaintiff in error had shown, was illegal, and the court erred in admitting it.

The practice of allowing defendants on trial, charged with crime, to introduce evidence showing good character, was first adopted in the English

courts during the reign of Charles II., and the practice there was to admit such testimony only in capital cases, in favorum vita, when the evidence was circumstantial or there was a doubt as to the guilt of the accused, but never admitted when the guilt of the accused was plainly shown by the evidence, the court, we presume, being the judge as to whether the evidence showed a plain case of guilt. The evidence in such cases, under the English practice, from the time it was first adopted to the present, was confined to the general character or reputation of the accused; that is, he could introduce evidence as to his general good character, but could not, for instance, show particular acts of kindness or honesty; and the prosecution was bound by the same rule. The prosecution could not put in issue the character of the defendant, but, when the defendant put his own character in issue, the prosecution had the right to introduce witnesses in rebuttal, and to show by them, or upon crossexamination of the defendant's witnesses, that the defendant's general character was bad, but was not allowed to show particular acts of misconduct on his part. This is the practice in most of the states of the Union, including our own. Now, it may be contended that, although illegal, the evidence of Ligon was immaterial, and did not prejudice the plaintiff in error's case. But is this true? Who can tell what influence this evidence had upon the jury? It was the only evidence in the case tending to impeach the good character of the plaintiff in error, but it was, in our opinion, calculated to prejudice the jury against him. That the testimony was illegal, and that it should not have been admitted, see Whart. Crim. Ev. § 23 et seq.; Reg. v. Rowton, 11 Jur. (N. S.) 1865, p. 325; Com. v. O'Brien, 119 Mass. 342; McCarty v. State, 51 Ill. 231; State v. Laxton, 76 N. C. 216; Snyder v. Com., 85 Pa. St. 519; Conkey v. People, 5 Park. Crim. R. 31; Olive v. State, 11 Neb. 1, 7 N. W. Rep. 444; Jones v. State, 10 Tex. App. 552; Engleman v. State, 2 Ind. 91, 97; Jones v. State, 76 Ala. 8; Thomas v. People, 67 N. Y. 218; Hirschman v. State, 101 Ill. 568; Rosc. Crim. Ev. 97; 2 Russ. Crimes, 784; 1 Chit. Crim. Law, 574; 3 Greenl, Ev. 25; 1 Phil. Ev. 617, 762-765; 1 Starkie, Ev. 25; Best, Ev. 270; Whart. Crim. Pl. § 801, and cases cited; Johnson v. State, 61 Ga. 305; Meyncke v. State, 68 Ind. 401. It is not in doubtful cases only that good character is of weight. Whart. Crim. Ev. § 65. The best rule is that where illegal testimony has been admitted in a criminal case a new trial will be granted, unless it is clear that no injury has been done to the defendant by it. Whart. Crim. Pl. §§ 801, 802, notes 6, 7; Wooten v. State, 24 Fla. -, ante, 39.

The second error assigned is: "The court erred in refusing to charge the jury as requested by the defendant, as follows: If you believe from the evidence that the name of the deceased was Church well, and that he was known generally by that name, the fact that a few persons may have called him Churchill does not mean, under the law, that he was generally known by that name. Generally known by a name, means that a person is called by that name by his neighbors as often or oftener than by his real or baptismal name.'

[ocr errors]

The third error is "That the court erred in refusing to charge the jury as requested by counsel for plaintiff in error, as follows: A mistake in the name of a third person in a material allegation will be fatal at the trial, for it creates a variance between the allegation and the proof."

[ocr errors]

The fourth error assigned is the charge given at the instance of the state's attorney, as follows: "A variance between the name used in the indictment of the person killed and the name proved, will be fatal, but the person killed may be called in the indictment either by his real name or the name he was called by, and it is not necessary that he should be called by the name used by every one in the community, but if he was generally called and known by the name used in the indictment it is sufficient.

[ocr errors]

The court upon this point of the case charged as follows: "If you believe

v.530.no.25-45

from the evidence that the name of the deceased was Churchwell; that by the name of Churchwell he was known; and that he was not generally known by the name of Churchill, as laid in the indictment,-it is your duty to acquit the defendant by a verdict of not guilty."

We will consider this charge of the court and the second, third, and fourth assignment of errors together. It is not clear upon what ground the court refused to give the first charge requested by the plaintiff in error; but this makes no difference, for the reason that not every variance between the name of the deceased, as laid in the indictment, and his true name, is fatal. If the name of the deceased as laid in the indictment and his true name are idem sonans, the variance is immaterial. There is but little difference in the spelling of the two names Churchill and Church well, and the similarity of sound is very striking.

The court may, however, have refused the said first instruction of plaintiff in error upon the ground that it assumed a state of facts that did not exist, and, if upon this ground, it was properly refused. There is nothing in the evidence to show that the deceased was known by the name of Churchill by "only a few persons."

One witness, Ligon, swore positively that the deceased was known and called Church, Churchill, and Church well, and that he was as well known by the name of Churchill as by his true name, Churchwell. Jackson, a witness for the state, stated that he was present at the preliminary examination of the accused before Justice MOREY, and that the deceased seemed to be known then and there by those who testified as Churchill; that that was what witness understood the witness to call deceased. Other witnesses swore that the deceased's true name was Church well, but no one swore that he was not as well known by the name of Churchill as Church well. This question, as to the name of the deceased, was properly left to the jury, to be passed upon by them. They passed upon the question, and, as is shown by their verdict, they must have found that the deceased's name was Churchill, or that he was as well known by that name as by any other, and, in our judgment, under the evidence, the jury found correctly as to this part of the case.

The second charge requested by the plaintiff in error was properly refused, because too broad, and because it was substantially but a repetition of the judge's charge, and which he was not required under the rules of practice to give. Gladden v. State, 12 Fla. 562; Nickels v. Mooring, 16 Fla. 76.

And now, conceding that the court should have given the charges as requested by the plaintiff in error, and that there was error in refusing to give them, such error, if it existed, was cured by the charge given at the instance of the state's attorney and the court's own charge. The charge given upon request of the state's attorney and the charge of the court upon this part of the case were more favorable to the accused than he was entitled to under the law, for the rule of idem sonans was entirely ignored, which, in our opinion, was in the interest of the accused.

Now, by construing these several charges together, as well those refused as those given, -the rulings of the court were favorable to the plaintiff in error, and he had no cause to complain thereat. That the variance between the names Churchill and Churchwell was immaterial, see Whart. Crim. Ev. 896; Kriel v. Com., 5 Bush, 363; O'Brien v. People, 48 Barb. 274,; Lowenberg v. People, 5 Park. Crim. R. 414; Walters v. People, 6 Park. Crim. R. 22.

The remainder of the errors assigned were the usual ones, that the verdict was contrary to law, contrary to the charge of the court, and that the court erred in not granting a new trial, which we do not propose to consider.

As the case will have to go back to the court below for a new trial, for the error stated supra, we refrain from expressing any opinion upon the general facts therein.

Judgment reversed, and new trial granted.

MAXWELL, J., (dissenting.) Not concurring in the decision of a majority of the court in this case, I shall briefly state wherein I dissent. Whether Ligon's testimony was improperly admitted, I shall not discuss, though, on the authority of In re Carmichael, 36 Ala. 514; Ingram v. State, 67 Ala. 67; State v. Jerome, 33 Conn. 265, and Best, Ev. § 261,-I am not satisfied that the court erred in admitting it. But, if it did, I think the error an immaterial

one.

The evidence was for the purpose of rebutting that which had been given in favor of the character of defendant. Evidence of good character, as a defense against a charge of crime, is of little weight, except in doubtful cases, and the rebutting evidence must be measured by the same rule. It would be a startling doctrine to say, where the facts clearly show a case of guilt, that evidence of good character, though admissible, should have any weight against those facts.

In my judgment, the facts of this case, irrespective of the evidence of Ligon, amply sustain the verdict of the jury; but from obvious reasons, as the case is to be tried again, I refrain from collating and discussing the evidence to justify my conclusion. It is enough to say that I think the facts of the case which support the verdict could not be affected one way or the other by the presence or absence of Ligon's testimony. Throwing that testimony out, the case remains, in its substantial merits, with the finding of the jury, and, if it does, a new trial should not be granted. Hil. New Trials. § 11, p. 57.

When, from a careful consideration of all the evidence in the case, I entertain no doubt of the correctness of the verdict, I am averse to sending it back for a new trial, in mere deference to rules of law that operate in the case more to prolong the trial unnecessarily, and to obstruct the business of the court, than to obtain substantial justice; and, even if there was mistake as to the admissibility of Ligon's evidence in regard to having chased defendant, I do not think, in view of the sufficiency of the evidence without it, that the error should lead us to grant a new trial.

EDWARDS v. THOM.

(Supreme Court of Florida. February 26, 1889.)

1. MORTGAGES-RECORDING-PROOF OF ACKNOWLEDGMENT.

Proof by a subscribing witness to a mortgage that he saw the mortgagor sign the instrument, and acknowledge that he did so, is not sufficient proof of its execution to authorize its admission to record.

2. SAME-DEFECTIVE PROOF-NOTICE.

The record of a mortgage made upon insufficient proof of its execution does not constitute notice of the mortgage to a subsequent bona fide mortgagee for value. 3. NOTARY PUBLIC--POWERS-MORTGAGES-PROOF OF EXECUTION.

A notary public can take proof of the execution of a mortgage of real estate for record.

4. MORTGAGES-FORECLOSURE-PRIORITY OF PAYMENT.

A bona fide mortgagee who has been made a party defendant with the mortgagor to a bill filed to foreclose a duly-recorded prior mortgage, and has become the purchaser at the sale made under the decree in such suit, is entitled to priority of payment out of the excess of the proceeds of sale, as against a mortgage executed before his, but not legally recorded, and of which he had no notice when he took his own mortgage.

5. SAME-SATISFACTION.

If a person holding a first mortgage surrenders it, and the promissory note it secures, to a subsequent owner of the land mortgaged, and takes from such owner a mortgage securing both the sum he paid for an assignment of the former mortgage and note and sums of money which he has advanced to such subsequent owner, and the latter has the record of the mortgage canceled, and delivers the note to the party making it and the first mortgage, such first mortgage will be held to be satisfied as to a subsequent mortgagee for value, and without notice, actual or constructive, of the second mortgage.

6. JUDGMENT-MODIFICATION.

When a decree is so framed as to cover certain charges made by the bill and put in issue by the other pleadings, but not sustained by the testimony, it should be so modified as to make it cover only the issues sustained by the testimony, if it seems that such modification may, under some circumstances, be essential or material to defendant.

(Syllabus by the Court.)

Appeal from circuit court, Alachua county; THOMAS F. KING, Judge. Appellee filed his bill in equity in Alachua county circuit court, April 14, 1884, against F. L. Selden and his wife, Matilda L., and William Edwards, and J. A. Carlisle, clerk of the circuit court of said county, alleging:

That by deed dated December 30, 1881, and duly recorded in the said county, Albert P. Acee and his wife, Anna P., conveyed to said F. L. Selden certain lands therein described, situate in said county; and that subsequently, by an indenture made January 10, 1882, and also duly recorded in the proper record book of the county, Selden and wife mortgaged the same land to secure a promissory note of said mortgagors of the same date, in the sum of $3,150, it being part of the purchase price of the lands. That in February, 1882, appellee loaned to Selden sums of money aggregating $3,500, upon the express promise of Selden that he would pay off the said indebtedness to Acee, and procure a release of his mortgage, and also pay and procure releases of all other liens and incumbrances affecting the property, and would thereupon execute and cause to be executed to appellee such deeds and assurances as would give him a first lien by way of mortgage upon said property as security for said $3,500. That Selden delayed and put off from time to time the performance of his promise, until finally, on February 23, 1883, after much correspondence, and repeated remonstrances and demands, appellee received through the mails a letter from Selden, dated Gainesville, Fla., February 19, 1883, inclosing a promissory note for $3,500, without date, signed by Selden and his wife, and payable to appellee, and also an instrument of mortgage on the said lands and premises, executed and acknowledged by them, but not recorded, and purporting to be a second mortgage on the property, subordinate to that made to Acee. That although this mortgage, it not being a first mortgage, did not conform to the agreement existing between appellee and Selden, the former was, under the circumstances, compelled to accept from Selden the best security then available; but inasmuch as the said promissory note bore no date whatever, and the date of the mortgage was illegible as to the year, appellee sent them back to Selden to be reformed, and procured from him a new note made by the same parties, and dated March 14, 1883, of the same amount, bearing interest from March 1, 1882; and also a new mortgage of same date, upon the same property, and duly recorded on the 15th of March, 1883, and likewise professing to be subordinate only to the Acee mortgage. Copies of said two notes and mortgages are annexed as part of the bill.

That Edwards, the father of Mrs. Selden, was, during all the above-mentioned transactions, the attorney and counsellor of Selden, and knew that appellee had made the said advances of money upon the faith of the said representations and undertakings of Selden to give him a first lien on said lands as security for the payment of said advances, but, as appellee is informed and believes, Edwards, well knowing the same, fraudulently and in collusion with Selden, and without the knowledge of appellee, procured from Selden an instrument dated October 12, 1882, purporting to be a mortgage of said lands, and to secure the payment of a joint note of Selden and his wife for $1,585.96; the said mortgage being recorded on October 29, 1882. That the consideration of this note and mortgage was not bona fide, but they were made and given to Edwards without any valuable consideration whatever for the same. That complainant, the appellee, had, at the time he took his said note and

« PreviousContinue »