Buford, J.
— The writ of error is to review a judgment of conviction of manslaughter under an indictment charging murder in the first degree.
The plaintiff in error in the brief filed in this case presents ten questions for our determination. The first question is:
“Where it appears in evidence that the deceased was shot around one o’clock in the morning and the sheriff, upon being notified between 2:30 and 3:00 o’clock, went to the scene of the shooting, about nineteen miles away, as soon as he could get dressed, and upon arriving there, was told by the defendant that the deceased tried to shoot him, the defendant, and he, the defendant, beat him to it, or words to that effect, and almost immediately thereafter, in the absence of testimony showing that deceased was in a dying condition or that death was impending, and he, in point of fact, did not die for about two weeks, the deceased made statements to the sheriff which were not shown to have been heard by the defendant, but it is alleged the defendant was near enough to have heard, and such statements were of a prejudicial nature, and calculated to influence the minds of the jury to the injury of the defendant, should such statements have been admitted in evidence over objection of the defendant?”
If there was any error in admitting the testimony referred to in this question it was cured by the verdict because the testimony which is challenged by the question tended to prove felonious intent, if it tended to prove anything at all. Aside from this, the record shows that the defendant was close enough to have heard the statements made by the deceased at the time they were made and which are referred to in this' question.
We think the record shows the statements were made in the presence of the defendant and, therefore, no error is made to appear. #
The second question is:
“Where the witness testifies that he heard a conversation between the defendant and a third party some little time after the shooting and the question is asked, ‘What was that conversation,’ the defendant reserving the right to move to strike the answer, and he answered, ‘Handley asked him was he dead yet and he said, ‘No but he is dying and will soon be dead.’ And Handley said, ‘Let me see how many times I shot’ and he reached in his belt, and pulled out his pistol and looked at it and said, T shot five times.’ Then Handley said, ‘They ought to have known better than to mess with me, I don’t miss them.’ And he held up his fingers and said, ‘that is two to my credit.’ ‘If I die tonight I can say that I got two of them.’
“Yes, sir,’ he said, ‘If I die tonight, that is two to my credit.’ ”, should the court have stricken such answer upon motion of defendants?”
All that the evidence challenged by this question tended to prove was that defendant shot the deceased and shot with the intent to strike the deceased. It might be said that this was cumulative evidence but it was certainly admissible as evidence tending to show that the defendant shot the deceased.
The third question presented is:
“Where it appears in evidence that the sister of Sledge who was the wife of his deputy, Arndt, arrived at the scene of the tragedy three or four hours after the shooting and had a conversation with Sledge, not in the presence of the defendant, should she have been allowed to testify over the objections of the defendant that Sledge told her
that he was going to die, that he would never live to get to the hospital and that ‘He had not done anything to Ernest Handley to cause him to shoot him down/ or words to that effect?”
There was an objection to the question as follows: “What was the conversation between you and him as to whether or not he would die?” The Court overruled that objection. When the witness answered the question she said: “He said, T am going to die,’ and I said, “Plow do you know?” and he said, T am paralyzed all over, I. cannot live. I am going to die.’ And I said ‘No, you are not ging to die, we are going to get you to the hospital’ and he said T will never live to get there.’ At that time he told me that he had not done anything to Ernest Plandley to cause him to shoot him down, or words to that effect.”
There was no motion to strike the answer or that part of the answer which was not responsive to the question. Therefore, the plaintiff in error is not in position to take advantage of error if there was any in the failure of the court to strike the unsolicited part of the answer, to-wit: “At that time he told me that he had not done anything to Ernest Handley to cause him to shoot him down, or words-to that effect,” which was the only part of the answer not properly admitted in evidence.
The fourth question is as follows:
“Where it appeared that the wife of Sledge saw him at the hospital about 5 :00 o’clock in the afternoon after the shooting and he had a conversation with her and demonstrated the manner in which the shots were fired, should she have been permitted, over the objections of defendant, to demonstrate to the jury the manner in which those shots-were fired ?”
We think that the admission of this testimony was error, but, when taken in connection with the entire record, we do not think that its admission could have worked any injury to the defendant. The testimony admitted over objection was given by Mrs. Sledge, the wife of the deceased. She testified that her husband, after reaching the hospital and at a time when he said that he was going to die demonstrated to her the manner in which the shots were fired which took effect in his body. The question was, “Did Mr. Sledge demonstrate to you the manner in which those shots were fired?” Objection was made upon the ground that the testimony elicited was hearsay; that no proper predicate had been laid as a foundation for the admission of such statement and that it is but a narrative of the past. The objections were rather vague and indefinite but the question elicited hearsay testimony. It was not shown to have been admissible as a dying declaration but the answer was such that its admission does not appear to us to have probably been harmful. The answer was: “He said that they were shot just like that, and he snapped his fingers 5 times as fast as he could.”
So, we hold the error thus committed to have been harmless. Section 2812 R. G. S., 4499 C. G. L.; Osteen v. State, 92 Fla. 1062, 111 Sou. 725; Henderson v. State, 94 Fla. 318, 113 Sou. 689.
The fifth question is as follows:
“Should the court, upon request of defendant, have charged the jury that the presumption of innocence ‘attends and abides with him (the defendant) at every step and in every stage in the case; that the fact or not that he is indicted for this offense is not indication of his .guilt, for to charge an offense is one thing and to prove it is another’ and that ‘if the evidence or lack of evidence to your minds
engenders a reasonable doübt as to the proof of any one or more of the material allegations of the indictment, then you cannot convict the defendant, but should return a verdict of not guilty’ ?”
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Buford, J.
— The writ of error is to review a judgment of conviction of manslaughter under an indictment charging murder in the first degree.
The plaintiff in error in the brief filed in this case presents ten questions for our determination. The first question is:
“Where it appears in evidence that the deceased was shot around one o’clock in the morning and the sheriff, upon being notified between 2:30 and 3:00 o’clock, went to the scene of the shooting, about nineteen miles away, as soon as he could get dressed, and upon arriving there, was told by the defendant that the deceased tried to shoot him, the defendant, and he, the defendant, beat him to it, or words to that effect, and almost immediately thereafter, in the absence of testimony showing that deceased was in a dying condition or that death was impending, and he, in point of fact, did not die for about two weeks, the deceased made statements to the sheriff which were not shown to have been heard by the defendant, but it is alleged the defendant was near enough to have heard, and such statements were of a prejudicial nature, and calculated to influence the minds of the jury to the injury of the defendant, should such statements have been admitted in evidence over objection of the defendant?”
If there was any error in admitting the testimony referred to in this question it was cured by the verdict because the testimony which is challenged by the question tended to prove felonious intent, if it tended to prove anything at all. Aside from this, the record shows that the defendant was close enough to have heard the statements made by the deceased at the time they were made and which are referred to in this' question.
We think the record shows the statements were made in the presence of the defendant and, therefore, no error is made to appear. #
The second question is:
“Where the witness testifies that he heard a conversation between the defendant and a third party some little time after the shooting and the question is asked, ‘What was that conversation,’ the defendant reserving the right to move to strike the answer, and he answered, ‘Handley asked him was he dead yet and he said, ‘No but he is dying and will soon be dead.’ And Handley said, ‘Let me see how many times I shot’ and he reached in his belt, and pulled out his pistol and looked at it and said, T shot five times.’ Then Handley said, ‘They ought to have known better than to mess with me, I don’t miss them.’ And he held up his fingers and said, ‘that is two to my credit.’ ‘If I die tonight I can say that I got two of them.’
“Yes, sir,’ he said, ‘If I die tonight, that is two to my credit.’ ”, should the court have stricken such answer upon motion of defendants?”
All that the evidence challenged by this question tended to prove was that defendant shot the deceased and shot with the intent to strike the deceased. It might be said that this was cumulative evidence but it was certainly admissible as evidence tending to show that the defendant shot the deceased.
The third question presented is:
“Where it appears in evidence that the sister of Sledge who was the wife of his deputy, Arndt, arrived at the scene of the tragedy three or four hours after the shooting and had a conversation with Sledge, not in the presence of the defendant, should she have been allowed to testify over the objections of the defendant that Sledge told her
that he was going to die, that he would never live to get to the hospital and that ‘He had not done anything to Ernest Handley to cause him to shoot him down/ or words to that effect?”
There was an objection to the question as follows: “What was the conversation between you and him as to whether or not he would die?” The Court overruled that objection. When the witness answered the question she said: “He said, T am going to die,’ and I said, “Plow do you know?” and he said, T am paralyzed all over, I. cannot live. I am going to die.’ And I said ‘No, you are not ging to die, we are going to get you to the hospital’ and he said T will never live to get there.’ At that time he told me that he had not done anything to Ernest Plandley to cause him to shoot him down, or words to that effect.”
There was no motion to strike the answer or that part of the answer which was not responsive to the question. Therefore, the plaintiff in error is not in position to take advantage of error if there was any in the failure of the court to strike the unsolicited part of the answer, to-wit: “At that time he told me that he had not done anything to Ernest Handley to cause him to shoot him down, or words-to that effect,” which was the only part of the answer not properly admitted in evidence.
The fourth question is as follows:
“Where it appeared that the wife of Sledge saw him at the hospital about 5 :00 o’clock in the afternoon after the shooting and he had a conversation with her and demonstrated the manner in which the shots were fired, should she have been permitted, over the objections of defendant, to demonstrate to the jury the manner in which those shots-were fired ?”
We think that the admission of this testimony was error, but, when taken in connection with the entire record, we do not think that its admission could have worked any injury to the defendant. The testimony admitted over objection was given by Mrs. Sledge, the wife of the deceased. She testified that her husband, after reaching the hospital and at a time when he said that he was going to die demonstrated to her the manner in which the shots were fired which took effect in his body. The question was, “Did Mr. Sledge demonstrate to you the manner in which those shots were fired?” Objection was made upon the ground that the testimony elicited was hearsay; that no proper predicate had been laid as a foundation for the admission of such statement and that it is but a narrative of the past. The objections were rather vague and indefinite but the question elicited hearsay testimony. It was not shown to have been admissible as a dying declaration but the answer was such that its admission does not appear to us to have probably been harmful. The answer was: “He said that they were shot just like that, and he snapped his fingers 5 times as fast as he could.”
So, we hold the error thus committed to have been harmless. Section 2812 R. G. S., 4499 C. G. L.; Osteen v. State, 92 Fla. 1062, 111 Sou. 725; Henderson v. State, 94 Fla. 318, 113 Sou. 689.
The fifth question is as follows:
“Should the court, upon request of defendant, have charged the jury that the presumption of innocence ‘attends and abides with him (the defendant) at every step and in every stage in the case; that the fact or not that he is indicted for this offense is not indication of his .guilt, for to charge an offense is one thing and to prove it is another’ and that ‘if the evidence or lack of evidence to your minds
engenders a reasonable doübt as to the proof of any one or more of the material allegations of the indictment, then you cannot convict the defendant, but should return a verdict of not guilty’ ?”
The charge was properly refused because it did not correctly state the law. That part of the charge reading, “If the evidence or lack of evidence to your minds engenders a reasonable doubt as to the proof of any one or more of the material allegations of the indictment, then you cannot convict the defendant but should return a verdict of not guilty,” is fatally defective because, while the evidence might fail to prove elements of murder in the first degree as alleged in the indictment it might amply prove some other degree of unlawful homicide and in such event the defendant would not be entitled to a verdict of not guilty.
The sixth, seventh and eighth questions are predicated on the assumption that the charge referred to in the fifth question was proper to be given and that the charges given by the court were inadequate and insufficient when considered with the fact that the requested charge was refused. We have carefully considered the charge of the court as given and find that it was entirely sufficient to give the defendant the benefit of all his legal rights in the premises.
The ninth question is as follows:
“Where the state attorney, in the trial of the case, while in the presence of the jury without cause, makes an issue between the defendant and himself, and pursues the matter in his argument to the jury in a manner to divert the minds of the jury from the issues in the case, should the court grant defendant motion for a new trial where the motion contains such a ground and is supported by affidavits?”
It appears from the transcript of the record that at the close of the testimony of the State the defendant moved
the court to call as a court’s' witness one C. J. English. The record shows that a motion was made and thereupon the court called English as a court witness. The record does not show any statement at that time,.made by the state’s attorney nor any objection made to anything said by the state’s attorney nor any ruling of the court in regard thereto or any exception noted.
In motion for new trial the seventeenth ground is in the following language:
“Because of a prejudicial statement of the State’s Attorney, the Hon. J. R. Kelley, in the presence of the jury upon the making of a motion by the defendant that the court call as a court’s witness one C. J. English, the particulars of said statement being set out in the affidavit hereto attached, and made a part hereof.”
In support of this ground to the motion the defendant made affidavit in which he averred:
“Immediately after the presentation of a motion of the defendant by his attorneys, that the court call one C. J. English as a Court’s witness, the States Attorney arose in an excited manner and stated that he resisted the motion and wanted to file an answer thereto and take evidence; that there were statements made in the motion that were not true and the facts were distorted and that he wanted to take testimony, all of which happened in the presence of the jury, and, as affiant believes, to his prejudice; that these statements were reiterated by the States Attorney, even while attorneys for affiant were objecting; that it was argued by the States attorney in his closing argument to the jury that the affiants attorneys had placed him, the States attorney, on trial, which argument may have caused the jury to conclude that he referred to the above incident;
that this affidavit is made for the purpose of supporting a motion for a new trial, and is made a part thereof.”
We assume from the face of the record that the motion that the court call the witness English as a court witness was made in the presence of the jury and-that whatever reply to that motion may have been made by the State’s Attorney was likewise made in the presence of the jury, but the record fails to show, as heretofore stated, that any objection was made at the time or that any exceptions were noted in connection therewith.
In the case of Jenkins,
et al.,
v. State, 35 Fla. 737, 18 Sou. 182, it was held :
“Comments of counsel in arguing a case before a jury are controllable in the discretion of the trial court, but this discretion is subject to review, and when counsel indulge in material statements outside of the evidence, and which are likely to do the accused injury it will be deemed an abuse of discretion when not stopped by the court on objection made. Such objection should be made at the time of abuse of the privilege of argument, and the action of the court overruling the objection, and the fact that exception was taken to such ruling should appear with the objection in the bill of exceptions.”
This has been followed in Danford v. State, 53 Fla. 4, 43 Sou. 593, and in McCall v. State, 120 Fla. 707, 163 Sou. 38.
The matter complained of in this case, however, did not occur in the argument of the State’s Attorney to the jury, but, assuming that it did occur, as was alleged in the motion for new trial, it occurred in an argument addressed to the Court when the Court had under consideration the motion of the defendant to call a witness as a court witness and
was in regard to a matter as to which the jury had no right of determination.
Therefore, we hold that error is not made to appear by the record in this regard.
The tenth question challenges the sufficiency of the evidence to sustain the verdict. We find the evidence amply sufficient to sustain the verdict.
Finding no reversible error in the record, the judgment should be affirmed and it is so ordered.
Affirmed.
Ellis, P. J., and Terrell, J., concur.
Whitfield, C. J., and Brown, J., concur in the opinion and judgment.
Davis, J., dissents.