On June 12, 1936, plaintiff in error was tried and convicted of manslaughter in the Circuit Court of Marion County, Florida, and sentenced for a period of two years in the State Prison of Florida. On writ of error to this Court it is insisted that error accrued during the progress of the trial on the part of the State Attorney when the following occurred:
"Q. Have you ever been convicted of any offense?
"A. I have not, so help me God.
"BY MR. SAVAGE: I object to the question, and move to strike the answer because the question may include misdemeanors. *Page 417
"BY MR. HUNTER: I will withdraw the question, and bring in the records.
"BY THE COURT: And the answer is stricken.
"BY MR. SAVAGE: I object to the remark of the State's Attorney that he will bring in the records.
"BY THE COURT: That is improper. The question has been withdrawn and the answer is stricken; that is entirely out of the picture. All questions about other crimes or convictions has nothing to do with this case at all."
It is fundamental that the burden of establishing defendant's guilt rests with the prosecution, the presumption of innocence accompanies the defendant during each step of the trial. We feel that these rules should be scrupulously observed. We believe the prosecuting officer in the above remarks invaded the legal rights of this defendant. It is admitted by attorneys participating in this cause that error was committed and present citation of authorities to show that the trial court corrected this error by instructing the jury to disregard these statements. It is an attractive theory and a lofty conclusion to assume that the court by its remarks cured this error, but to this we cannot agree. The influence of this improper remark is reflected in the verdict found and that no human agency could remove the effect thereof from the minds of the jury when it was deliberating upon its verdict.
There is a sharp conflict in the evidence about defendant being under the influence of whiskey at the time of the accident. Defendant produced some witnesses who testified that within a short time prior to the accident, she had not been drinking, while the officers at the scene of the locus in quo testified that they smelled whiskey on her breath and knew it was not the odor of beer, but could not name the particular make or brand of whiskey, that she could not *Page 418 walk straight when placed in jail, and shortly thereafter called for coffee. This conflict could be reconciled by assuming she obtained whiskey after leaving defendant's witnesses and prior to the accident, and this construction would permit each group of witnesses to speak truthfully.
While the car defendant was driving had signs of a collision alleged to have been caused by striking deceased as he walked near the pavement, knocking him approximately 25 feet and breaking his legs, and the undertaker gave as his opinion the cause of death, this impact. While drivers of automobiles have legal duties to observe in the operation of cars on the highways, likewise pedestrians traveling on or near these highways, have certain legal duties and obligations to observe for their own preservation. If the deceased and associates had traveled the opposite side of the highway when and where the accident occurred, they could have seen approaching cars, and cars traveling the highway from their rear would have been several feet to their right.
This defendant remained at the scene of the accident and rendered every possible assistance. She proposed medical help to the injured and her nervousness was not observed prior to the arrival of the officers. No whiskey or other intoxicants were found on her person or about the car she was driving. We feel that the ends of justice will be best subserved by granting the defendant below another trial. The judgment is hereby reversed and a new trial granted.
ELLIS, C.J., and TERRELL and BROWN, J.J., concur.
WHITFIELD and BUFORD, J.J., dissent.