Sylvester v. State

46 Fla. 166

• Court: Supreme Court of Florida
• Decided: June 15, 1903
• Status: Published

Opinions

Maxweuu, J.

This case was argued before Division B but there being a difference of opinion among the members of that division was referred to the court for decision.

The plaintiff in error, William Slyvester, charged with the murder of one Edward Burton, was convicted of murder in the first degree and sentenced to death. From this judgment he comes by writ of error to this court.

I. Burton was the master mechanic in the shops of the Florida Central and Peninsular R. R. Co. in Fernandina, and Sylvester a mechanic employed in the shops. The day before Burton was killed a difficulty had occurred at the shops between union and non-union men. Butterfield, a State witness, testified that on the evening before the killing, Burton taxed Sylvester with being concerned in this difficulty. This Sylvester denied, and Burton replied “it is a damned lie; he did have a hand in it.” The defendant’s counsel thereupon asked the witness “do you know whether he did or not?” Objection to this question was sustained by the court and this ruling is assigned as error.

It was competent for the State to introduce evidence of this difficulty between the defendant and the deceased as tending to show the relations existing between them and the animus or motive which may have influenced each in the difficulty of the following morning which resulted in Burton’s death. But this would not warrant an examination into the merits of that controversy or into the truth or falsity of such charges or counter charges as may have been there made, and evidence upon this-point was properly excluded. People v. Thompson, 92 Cal. 506, 28 Pac. Rep. 589; Williams v. State, 69 Ga. 11, text 31; Commander v. State, 60 Ala. 1; McAnnally v. State, 74 Ala. 9; Bohlman v. State (Ala.), 33 South. Rep. 44; Martin v. Commonwealth, 93 Ky. 189, 19 S. W. Rep. 580; Commonwealth v. Silk, 111 Mass. 431; Pinckord v. State, 13 Tex. App. 468; State v. Sorter, 52 Kan. 531, 34 Pac. Rep. 1036.

II. The second assignment of error is based upon the refusal of the Circuit Judge to permit the defendant to ask a witness, Holden, upon cross-examination, whether a conversation with the defendant to which he had testified occurred before or after Burton was shot. This inquiry was made of the witness several times during the cross-examination, and he four times reiterated positively his testimony given on direct examination that it had occurred before the shooting. This sufficiently cured any error in the first exclusion of the question.

III. A short time before Burton was killed, as a result of their differences of the evening before, Slyvester by Burton’s order was discharged from the machine shops where he was employed. Hernandez, foreman of the shops, testified that Sylvester came to him to ask why he was not permitted to work, and that he seemed to be excited. Upon cross-examination, after showing that Sylvester had a family whom he supported by his labor, the defendant’s attorney asked the witness the following question: “Was his manner any different from that of other men with families dependent upon them suddenly losing a job?” Objection to this question was properly sustained by the court. It was competent to ascertain what the manner of the defendant was, as that it showed chagrin, or anger, or apprehension (Higginbotham v. State, 42 Fla. 573, 29 South. Rep. 410 ; Mitchell v. State, 43 Fla. 584, 31 South. Rep. 242), for this would aid in determining his state of mind and the motives which actuated him in his subsequent conduct. But how his manner would compare with the witness’ idea of how other men would appear who had suddenly lost employment is not relevant nor material.

IV. A witness, Milliss, testified that he had heard part of a conversation between the defendant and Burton on the evening before Burton’s death. He was asked to state what he heard, and this was objected to on the ground that he had not heard the whole conversation and could not testify to only a part. This objection was without merit. Meacham v. State, 45 Fla. 71, 33 South. Rep. 983; Williams v. Keyser, 11 Fla. 234, S. C. 89 Am. Dec. 243.

V. No exception was taken to the ruling of the court in excluding the question to the witness Glennsinger, which forms the basis of the fifth assignment of error, and it can not be considered.

VI. Wells, a witness for defendant, who testified to the shooting of Burton by the defendant, was asked by the defendant’s counsel whether he saw Sylvester backing' at any time. His reply was “I never saw him.” The defendant’s counsel thereupon asked him “did you not testify at the coroner’s inquest that you saw Mr. Sylvester backing away when Mr. Burton was shaking his finger at him ?” and “did you not at the coroner’s inquest at Fernandina, immediately after the shooting ,of Burton, testify in words following: T seen Mr. Sylvester backing away and Mr. Burton shaking his finger in his face and following him?”’ Objection by the State to these questions was sustained, and upon this ruling are predicated the sixth and seventh assignments of error.

The defendant’s first contention thereunder is that the questions were proper as laying a predicate for the impeachment of the witness. When the objections were made in the court below, the trial judge asked the attornéy for the defendant if he desired to impeach his witness and he said he did not, but merely to refresh his memory. We need not determine whether the defendant would by this be es-topped from now contending that the questions should have been permitted for the purpose of impeachment. Previous statements of one’s own witness contradictory of his present testimony can be introduced to impeach him only when the witness proves adverse, and then only for the purpose of nullifying his present damaging testimony, and not as evidence of the facts narrated in the earlier statement. The witness in this case had not proven hostile. He did not say that he saw both parties to the affray when just before the shooting Burton was shaking his finger at Sylvester, which would give his statement, that he did not see Sylvester backing, the force of affirmative testimony that he did not back. On the contrary, he said “Sylvester passed out of my view, and I saw Mr. Burton head him off and some little conversation passed between them but I could not hear what it was. I saw Mr. Burton shaking his left finger in Mr. Sylvester’s face, and his right hand down by his side. Two or three seconds later I heard the first shot fired but I could not see who fired it on account of the smoke. Then Sylvester stepped into view and I heard the second, third, fourth and fifth shots. Q. Now when Mr. Burton was shaking his finger in Mr. Sylvester’s face could you see Mr. Sylvester. A. Before the first shot? Q. Yes. A. I could not see him. I would not see Mr. Sylvester.” When, therefore, the witness was asked whether he saw Sylvester backing and said he never saw him, his answer was not testimony that Sylvester did not back; but a reiteration of his previous testimony that he could not see Sylvester at that time. The questions were not admissible therefore for the purpose of impeachment.

The further contention of counsel upon these assignments is that the questions were proper for the purpose of refreshing the memory of the witness. Authorities may be multiplied holding that where a witness has by his testimony surprised the party calling him he may be interrogated as to previous statements made by him which conflict with his present testimony, the reasons given being that the witness’ memory may be refreshed and he be led to the truth or to an explanation of the seeming conflict in his statements, that the party calling him may explain to the jury his reason for calling the' witness, or that the effect of his present testimony may be neutralized. The latter grounds are pertinent only to cases where the witness’ testimony is prejudicial, and rest on much the same reason as the right to impeach by proving the former statements of the witness by other witnesses. These have no application to the case at bar where the witness was neither unwilling nor adverse to the defendant. If admissible here the questions were proper solely for the purpose of recalling the truth to the memory of the witness and enabling him to testify correctly.

The right to direct the attention of the witness to his former statements for this purpose does not abrogate other rules of evidence which may be applicable to the examination. One of those invoked by the State Attoreny in his objection to this question is that it was leading. Cases may be found sustaining the right in such an examination to state or hand to the witness his former testimony, but this is usually done in dealing with an adverse witness who may be treated as if on cross-examiflation. Fitzpatrick v. State, 37 Tex. Cr. App. 20, 38 S. W. Rep. 806; Carpenter v. State, 51 S. W. Rep. 227; Spaulding v. Chicago, St. P. & K. C. Ry. Co., 98 Iowa, 205, 67 N. W. Rep. 227; State v. Hughes, 8 Kan. App. 631; State v. Wright, 112 Iowa 436, 00 N. W. Rep. 000. Here the witness did not appear to be of feeble mind or failing memory demanding strong aids to his recollection (Coxe Bros. & Co. v. Milbrath, 110 Wis. 499, 00 N. W. Rep. 000; Bashford v. People, 24 Mich. 244), but testified clearly and positively to what he saw, nor was he an unwilling witness. It was, therefore, a proper exercise of the discretion reposed in the trial judge to refuse to permit this leading method of examination without at least first ascertaining whether the mind of the witness could be directed to his former statement by some less suggestive means. Bashford v. People, 24 Mich. 244; People v. Lyons, 51 Mich. 215, 16 N. W. Rep. 380; Billings v. Metropolitan Life Ins. Co., 70 Vt. 477, 41 Atl. Rep. 516; Arnold v. State, 5 Wyoming, 439, 40 Pac. Rep. 967; Velott v. Lewis, 102 Pa. St. 326; 1 Thomp. on Trials, sec. 401 (3).

There was another objection to the method of examination here pursued. Its sole legitimate purpose was to recall to the witness the truth of the case. Even if circumstances were shown where it was proper to place before the witness the former testimony given by him, it should have been done in a way best to effect the end sought and least violative of other principles governing the introduction of evidence. The witness’ memory would have been best refreshed by an examination of the testimony given by him at the coroner’s inquest, rather than by having an isolated question and answer therefrom read to him. Simmons v. State, 32 Fla. 387, 13 South. Rep. 896. On the other hand, reading the question to him, as was done, was calculated to impress the jury with the fact that such testimony was given, a fact with which, as we have seen, they had under the circumstances of this case no proper concern. Where the previous statement of the witness has not been reduced to writing, and a leading examination is permitted, this difficulty of course can not be avoided. With a written examination it can be avoided, and in the case of Commonwealth v. Fox, 7 Gray, 582, where the witness could not read, counsel were required to withdraw to one side and read the former testimony to the witness out of the hearing of the jury. See Parlin & Orendorff Co. v. Miller (Tex. Civ. App.), 60 S. W. Rep. 881; Reg. v. Williams, 6 Cox’s Crim. Cas. 343. We state this not as a practice which must in all cases be followed, for it is a matter which rests somewhat in the discretion of the trial judge under all the circumstances of the case, but as a further reason why the ruling of the court in this instance was proper. There was no error in the exclusion of these questions to the witness Wells. •

VII. The next following nine assignments of' error question the propriety of the action of the trial court in permitting the State Attorney to show by cross-examination of a defendant’s witness, Ficklin, that he had come from Charleston, S. C., without subpoena upon request of counsel for the defendant, and that counsel paid, his fare. Such action on the part of the witness is not of course conclusive evidence of any undue bias in the prisoner’s favor such as would affect his credibility, for he may have been animated in this conduct by the highest principle, but it was a circumstance proper to be considered by the jury in weighing his testimony, and its admission in evidence was not error. Alabama G. S. R. R. Co. v. Johnson, 128 Ala. 283, 29 South. Rep. 771; Southern Ry. Co. v. Crowder, 130 Ala. 256, 30 South. Rep. 592; Ashlock v. State, 16 Tex. App. Rep. 13; Wabash Railroad Co. v. Ferris, 6 Ind. App. 30; State v. Keys, 53 Kan. 674, 37 Pac. Rep. 167.

VIII. Another defendant’s witness, Newstub, who had come in the same way from a distance to testify, and who stated on cross-examination that he took no more interest in this case than he would in any other affair, was then asked. “do you mean to tell the jury that it is possible for you, not taking any interest in the case, to ■ come over and testify whether you have been summoned or not?” Objection to this question as tending to prejudice the jury against the witness was overruled. The question merely served to point the inference of bias drawn by the State from the witness’ willingness to voluntarily appear, and to give him an opportunity to explain his attitude in the case if the inference was unfounded. We find in this no error.

IX. The same witness on cross-examination was interrogated as to whether he had not a short time before the trial been discharged from the machine shops of the railroad company for drunkenness and disorderly conduct. He admitted being discharged upon that alleged ground, but denied its truth, saying that two of his companions were guilty and not himself, though all were fined in the mayor’s court for the offense; and claimed that the real reason for his discharge was the discovery by the railroad officials that his testimony upon this trial would be favorable to the defendant. On the following day, after several other witnesses had testified, he was recalled to the stand as a witness to character and upon cross-examination was asked, “are you riot the same witness who testified yesterday, and who in cross-examination denied that you were discharged for being drunk, are- you that same Newstub?” The prosecution was of course entitled to have such testimony as would discredit the witness considered with respect to the whole of his testimony. More than forty witnesses were examined in the case and before a jury from another county than that in which they resided. With this extensive panorama of strange faces passing before the jury, it was entirely proper when one was recalled who had already been impeached, to identify him in this way to the jury, instead of rehearsing the whole impeaching examination. What has been said applies also to the question to the witness Ficklin, “are you not the same witness who testified that you came, here voluntarily from Charleston on a telegram to testify in this case from one of the attorneys for the defense in this case?”

X. There was- no error in permitting the detective Fitzwater, summoned as a witness for the State, but not placed upon the stand, to remain in the court room during the trial.

XI. Hall, a defendant’s witness called to testify to Burton’s reputation as a dangerous man, testified that some months before Burton’s death he left the machine shops in which he was employed on the day that Burton became master mechanic in charge of them, because he thought it would be unpleasant for him to remain. He was then asked “in what regard?” for the purpose apparently of showing that he was unwilling to work under Burton. Objection to this question was sustained. This ruling was correct, as the reputation of the deceased can not be shown by the relations exxisting between him and another and the unwillingness of the other to work under his direction.

XII. The next two assignments of error are predicated upon the refusal of the court to permit the defendant to ask a State witness, Acosta, what he “talked” to one Glensinger, and what he told Glensinger he was going to testify in the case. Glensinger in connection with the detective Fitzwater had been active in procuring evidence for the State, and it is argued that .the examination in question was pertinent as tending to show whether his present testimony was suggested to him by Glensinger. The questions seem framed rather to ascertain what the witness said to Glensinger than what Glensinger said or suggested to him. They were not pressed for the purpose of showing previous contradictory statements of the witness either as an aid to memory or for impeachment; but had this been the case it would have been entirely proper to refuse to permit counsel, with no information as to such statements having been made, to require a witness to repeat whatever previous conversations he may have had concerning the case on trial in the hope that some contradictory statement might be unearthed.

XIII. The twenty-fourth assignment of error, which questions the right of the State to inquire as to the manner of one whose conduct is under examination because it calls for the opinion of the witness, is disposed of by what has been said under the third assignment. Higginbotham v. State, supra; Mitchell v. State, supra.

XIV. .In his argument to the jury the assistant counsel for the State, in commenting upon the testimony of the witness Ficklin who had come from Charleston to testify, without subpoena, said that the witness was a friend of the defendant whose testimony was unworthy of credence .and the action of the witness was sufficient to authorize the jury to disregard his testimony; that furthermore, another witness, Newstub, had said he was going to lie for the defendant, that Newstub was a witness just as Ficklin was (he also had come from a distance to testify for defendant); that both were friends of the defendant, and the jury could infer from Newstub’s testimony what weight they ought to give the testimony of Ficklin. This comment of counsel was objected to by the defendant, and the objection overruled. We have already seen that the circumstances mentioned were properly admitted as evidence to be considered in determining the credibility of the witnesses, and it follows that comment upon them for that purpose was admissible in argument. Nor was it an abuse of privilege for counsel in commenting upon the testimony of two witnesses showing the same readiness to testify for the defendant, and one of whom was said to have stated that he would lie for him, to say that the credit of one might be judged by what was shown of the other. It could hardly lead the jury to believe that what was testified as to one could be regarded as evidence against the other; the testimony as to the one was used merely to illustrate the inference to be drawn from other testimony applicable to both. Even if the illustration be faulty, this court will not scrutinize with great nicety the logical force of arguments made by counsel assigned as ground for reversál. As was said by this court in the case of Mitchell v. State, supra, “it is not reversible error for the court to refuse to interfere with the argument of counsel because it is illogical or not based on deductions not reasonably inferable from the facts.” Proctor v. DeCamp, 83 Ind. 559; Missouri Pac. Ry. Co. v. White, 80 Texas, 202, 15 S. W. Rep. 808.

XV. In this connection we will consider the fortieth assignment, like the last based upon statements made in argument by the counsel assisting the State in the prosecution. The only exception properly presented by this assignment is the one just discussed, as the assignment alleges error in refusing to grant a new trial because of the argument complained of, and the only ground of the motion for a new trial based upon this is the twenty-fourth, “because the court erred in overruling the objections of the defense to the language of John L- Doggett, of counsel for the State, in his argument to the jury and to which exception was taken.” The remarks quoted in the preceding paragraph are the only ones objection to which was overruled.

Under this assignment, however, the defendant in his brief complains of objectionable remarks made by counsel in argument, where his objections were sustained and counsel was rebuked by the court. As these points are not covered by the assignments of error we are not required to consider them. Johnson v. State, 29 Fla. 558, 10 South. Rep. 686; Lawrence v. State, 45 Fla. 42, 34 South. Rep. 87. But as this is a capital case, we state briefly our views in regard to them.

The State had offered testimony that the defendant had been discharged from a previous employment in Cummer’s mill because of an attempt made there to kill a man. This was ruled out. In argument the counsel for the State started to comment on the occurrence as illustrating the character of the accused. This was objected to, and the trial judge sustained the objection, rebuked the language of counsel, instructed him not to comment on defendant’s character, and instructed the jury not to pay any attention to this comment. Counsel apologized for his language, and then pointing to the defendant said “well, gentlemen, I am not allowed to comment on the character of the defendant, but if I were I could-,” when he checked himself and passed to a more legitimate line or argument. This was undoubtedly improper, but when counsel recollected himself before giving any intimation of what he could do if permitted, and without further objection being made or becoming necessary by opposing counsel, and with the instruction of the court upon the subject fresh in the minds of the jury, we should not regard it as constituting reversible error even if we were compelled to give the defendant the benefit of whatever appears in the bill of exceptions, though not assigned as error.

The counsel assisting the State, in another part of his argument, conceived that the counsel for defendant had charged him with unprofessional, conduct and with being employed in the case by the F: C. & P. R. Co. He denied the truth of both charges, and addressing the jury as “my friends” said that they knew him and knew that he would prosecute any case only in a hightoned and proper manner, and that when he said a thing it was so. Counsel for the defendant disclaimed making either of the contentions alleged, and objected that the statements of the counsel were not argument, but obtruded his personality upon the jury, and tended to prejudice the jury against the defendant and his counsel who were not known to the jurors. In passing upon the objections the court in the one instance held that no charge of unprofessional or dishonorable conduct had been made, and requested counsel to confine his argument to the facts in evidence. In the other instance the court sustained the objection of defendant’s attorneys, and rebuked and admonished the counsel for the State and instructed him to confine himself to arguing the testimony in the case. We do not regard the conduct of counsel as of so flagrant a nature, nor its effect as so injurious to the defendant, as to demand reversal of the judgment notwithstanding the action of the court below in correcting the error. 1 Bishop on Crim. Proc., sec. 975b; Spire v. Nitkin, 72 Conn. 202, 44 Atl. Rep. 13; Clemmons v. State, 43 Fla. 200, 30 South. Rep. 699.

XVI. The twenty-sixth, twenty-seventh, twenty-eighth and twenty-ninth assignments of error are based upon exceptions to the following parts of the charge given by the court: “A defendant must himself be reasonably free from fault in the inception of the difficulty in which such homicide may be committed.” “No one can by his own act provoke a difficulty with his adversary, and, having provoked such difficulty, act under the necessity produced by this difficulty and kill his adversary and justify such homicide under a plea of self-defense;” “in other words, if one with hatred and malice in his heart against a particular person provoke a difficulty with that person by act, words or otherwise, and then in such difficulty kills that person, he can not justify the act, although in the progress of such difficulty there exists a necessity to kill in order to save his life or preserve his person from the imminent danger of great harm, and although the person killed did make the first attack in the particular difficulty in which the homicide occurred, having been provoked thereto by the acts or words of the other.” “Before one not reasonably . free from blame in the inception of the difficulty can justify a homicide under the plea of self-defense, he must have honestly and bona dde declined the combat.”

These assignments are argued together by the defendant. His first and principal objection to the charges in question is that there was no evidence of aggression on the part of the defendant upon which to predicate them and they tended unjustly to lead the jury to believe that the defendant had provoked a difficulty which was really forced upon him. The evidence for the State was to the effect that on the afternoon before the difficulty Burton and the defendant had a dispute as to whether the latter had been engaged in a fight occurring in the shops that morning, and Burton told the defendant he could not work for him any more. The next morning while at work the defendant was informed that he was discharged by Burton’s order, whereupon he left the shops, procured a loaded pistol, purchased some additional cartridges for the pistol which he put loose in his pocket, then returned to the shops, went up to where Burton was and a few words were exchanged, the first of which testified to by any of the spectators of the difficulty was the lie given by the defendant to Burton. Burton replied “By God, it’s so,” shaking the finger of his left hand in the defendant's face while his right hand was at his side. The defendant thereupon drew his pistol and shot Burton five times, killing him. We do not deem it necessary to demonstrate by argument the fact that this testimony will support the theory of original aggression by the defendant upon which the charges were founded.

It is also contended that the charge should have been so framed as to give the defendant the benefit of any reasonable doubt as to whether he was in fault. ' The general charge of the court sufficiently covered this point, and it was not necessary to repeat the caution with every special instruction given.

It may be observed that the language of these instructions is quite broad, and cases may arise where, in order to present the question fairly and fully to the jury, some definition should be given of what constitutes such provocation of a difficulty as would deprive one of the right of self-defense as a justification for homicide. The evidence in this case, however, did not demand special instructions upon these points. The theory of the defense would acquit the defendant of any agency in provoking the quarrel, and the State introduced no evidence of an ambiguous or doubtful act-of provocation by the defendant of such character as to require a carefully qualified instruction to prevent injustice to him. Nor were such instructions requested by the defendant.

XVII. The thirtieth to the thirty-eighth assignments, which relate to charges requested by the defendant and refused by the court, are argued together by counsel and will be so 'considered by us.

The first, third, fourth,' fifth, sixth and ninth of these charges numbered respectively 2, 5, 6, 7, 18 and 22, are objectionable in that they ignore the necessity for a belief of danger on the part of the defendant as an element in the defense of self-defense based upon apparent danger, and authorize acquittal when reasonable grounds for such belief exist, whether the defendant entertained the belief or not.

A belief in his danger as a motive for his action is the very basis of self-defense where" the danger is only apparent, not real, and such eminent writers upon criminal law as Bishop and Wharton emphasize this to the point of regarding an honest belief as sufficient whether reasonable or not to the ordinary mind, provided it be not the result of negligence. Our law has qualified this by adding that the belief must be founded upon such appearances as would induce the same belief in the mind of a reasonable, prudent and cautious man. But this is merely a qualification of the right of the accused to defend by asserting a belief of danger as to the motive for the homicide, and it was never intended to substitute the appearances for the belief, as the ground of this defense. Lane v. State, 44 Fla. 105, 32 South. Rep. 896, and cases cited. It is without reason to say that a man who is able to see that appearances of danger are deceptive, who is in no danger and knows that he is not, should be acquitted as acting in self-defense because men of only ordinary reason and prudence in the same situation would be deceived by the false appearance of danger.

The general charge given by the court instructed the jury as to the necessity of a belief of danger by the defendant, and this would have tended to correct the error in the charges as framed, but the fact that error in a charge may be neutralized by other instructions given does not make it error for the court to refuse to give the faulty instruction.

These instructions are also defective in not containing the qualification that the defendant must not be the agressor at fault in originating the quarrel, which was, in Padgett v. State, 40 Fla. 451, text 457, 34 South. Rep. 145, held sufficient ground for refusing similar instructions.

It may be added that practically the whole of these several instructions, in so far as they are correct, were fully and fairly covered by the general charge of the court, except as to the point that one threatened by another has a legal right to arm himself for self-protection. If instruction upon this point was asked as a basis for the contention that the defendant when he armed himself was acting within the law, it had no support in the evidence introduced, as this showed that he armed himself by concealing a pistol upon his person, in violation of law. If, on the other hand, it was made a basis for the contention that the defendant would not in arming himself for self-protection become so far the aggressor in whatever difficulty thereafter arose as to lose the right of self-defense, this so obviously followed from the various instructions given the jury in regard to the right of self-defense that it was not error to decline to give it when embodied in an instruction obnoxious to both of the objections which we have above pointed out.

The second, seventh and eighth instructions refused, numbered respectively 4, 20 and 21, were sufficiently covered by the charge given by the court, which was characterized by great fullness and fairness in treating of the defendant’s case.

XVIII. The thirty-ninth assignment is based upon the refusal of the court to give to the jury an instruction that the voluntary appearance of witnesses without subpoena does not in any way impugn their truth or affect or tend to impair their credibility. This is disposed of by what has been said in paragraph VII of this opinion.

XIX. During a portion of the argument for the defendant and of the closing argument for the State the State Attorney absented himself from the court room. The closing argument for the State was made by counsel employed by the State Attorney to assist him in the case, but at whose instance or at whose expense is not shown. In the case of Thalheim v. State, 38 Fla. 169, 20 South. Rep. 938, it was held that private counsel might be employed to aid the State Attorney in a prosecution, but the case should not be surrendered to the exclusive management of counsel privately employed, but should be conducted by and under the supervision of the public prosecutor. In this case at the time of the State Attorney’s absence from the court room the whole of the evidence in the case had been introduced, and the State’s theory of the case developed in the opening argument made by the State Attorney to the jury. The argument of the other counsel could best be- controlled, in case of need therefor, by the court rather than by the State Attorney. No objection was made to the absence of the State Attorney, nor to proceeding with the argument without him, although his absence was known to the defendant, who is one of those who swears to it. We know of no' authority which would support a reversal of the judgment upon this ground under circumstances such as these.

XX. The last assignment of error is based upon the refusal of the court to set aside the verdict and grant a new trial because the jury were not drawn nor venire issued according to law as shown by the affidavits attached to the motion for a new trial. The only ground of the motion for a new trial which questions the regularity of the organization of the jury is the first, as follows: “Because as appears from the answers of the jurors on their voir dire the jury was not drawn from the body of the county as required by the order of the court, but practically from one precinct in the county, to-wit: the precinct of Mandarin.” This was supported by affidavits of the defendant and his attorneys that they were informed that forty-two of the fifty jurors summoned in the case were from Mandarin precinct, and that the prosecuting attorneys had great personal influence in that precinct. The deputies of the sheriff, who summoned the jury, filed affidavits that only eighteen of the jurors came from that precinct, and the answers of the jurors themselves as given on their voir dire, and upon which the motion was based, show only three more than that number to be from Mandarin or its vicinity. The motion, therefore, is not supported by the evidence upon the point even if a panel constituted as charged in the affidavits of the defendant would be illegal. Moreover, the facts disclosed by the examination of the jurors on voir dire, were of course then made known to the defendant and his counsel, and if they disclosed ground of objection to the panel, the defendant should have availed himself of it before verdict. Revised Statutes, section 3937; Steele v. Malony, 1 Minn. 347; 12 Ency. Pl. & Pr. 424.

This is the only attack upon the jury covered by the assignment of error, and the only one therefore which need be considered. Lawrence v. State, supra; Johnson v. State, supra. None of the other objections to.it which are now urged was presented in any way to the lower court, nor are they presented to this court except in the brief of counsel and none of them-goes to the fairness or competency of any of the jurors, but merely to the regularity of their procurement. The refusal to consider them does not in any way conflict with the recent decision of this court in the case of Parker v. Dekle, as that case authorizes the court to consider without assignment of error only errors jurisdictional or fundamental in character, and not all errors apparent upon the record.

The evidence was sufficient to support the verdict of the jury, and the judgment of the court below will be affirmed.