Nickles v. State

Taylor, C. J.

The plaintiff in error was indicted, tried and convicted of the crime of assault with intent to murder in the Circuit Court of Jackson county at its spring term, 190,3, and from the sentence imposed seeks relief by writ of error here.

The State introduced one James Lewis as a witness, who, after testifying that he had visited the scene of the shooting by the defendant on the next day after the occurrence, was asked the question: “Can you state whether or not any shells were picked up that day or not?” To this question the defendant objected on the ground that what was done on the next day after the shooting was not recent enough. The objection was overruled and exception taken. The witness was then asked the following question: “State whether or not you picked up anything, or anything was picked up in your presence at that time ?" The defendant objected to this question on the same ground as the above, but the court overruled the objection to which ruling exception was taken, and these rulings constitute the first assignment of error that is argued. The witness in reply to these questions testified to having picked up some gun wadding on the scene of the shooting. There was no error here. The locality and circumstances attending the shooting were fully described by other witnesses. The fact of the shooting was not denied by the defendant, and the finding of gun wads or empty gun shells on the ground the next day after the shooting, corresponding in size with the calibre of the gun used, was a corroborative circumstance not improper, on the ground of remoteness, to be considered by the jury for what it was worth in connection with all the other facts in the case.

Alfred Nickles, a witness for the defendant, whose testimony was taken out of court on interrogatories, afte. testifying that he was quite near to the scene of the shooting, and heard the shot, and that he saw one Joe Seegars, who as a witness for the State had testified that he was present and witnessed the shooting, about ten or fifteen minutes *49before the shooting going away from the scene thereof to the prosecuting witness’ house, distant about three-eighths of a mile, after water, was asked the question by the defendant: “Did he have time to get back to place of difficulty before difficulty after getting water?” and in answer thereto said: “No sir, he did not have time to leave Paul’s house.” After this answer had been read to the jury, on motion of the State Attorney, it was stricken out by the court on the ground that it was an expression of opinion by the witness. Whereupon the court instructed the jury to disregard the evidence of the witness to the effect that the boy Seegars had not had time to get back — to leave Paul’s house. To both of these rulings the defendant excepted, and they constitute the second assignment of error argued. There was no error here. The witness stated about how long before the shooting it was that he saw the boy Seegars going away after water, and he also stated the distance from the scene of the shooting to the place where he went for water, and the jury were as well qualified as was the witness to say from this data whether the boy could have gotten back in time to witness the shooting, and the stricken answer of the witness was merely the expression of his opinion on the subject.

The third assignment of error insisted on here is the admission in evidence on behalf of the State of a letter written by the defendant’s witness Alfred Nickles, who is the father of the defendant, to the State Attorney, the sum and substance of which was a request to the State Attorney that he should avoid his obligations to the State and favor the defendant as much as possible. It is urged here that it was not admissible because it was not shown to have been written by the said Alfred Nickles. We do not think there is any merit in this assignment. In the cross interrogatories propounded to the witness Alfred Nickles he was asked if he had not written a letter to the State Attorney about the time of the receipt by him of the letter introduced, and if he had not mailed said letter at a place called Bascom, *50all of which he answered in the affirmative. Material parts of the letter were also quoted to him verbatim in the interrogatories, and he was asked if he had written that to the State Attorney, to which he replied in the affirmative. Besides this the State Attorney testified to the receipt of the letter at about the time it was mailed by due course of mail, and exhibited the envelope in which it was received, showing that it had been mailed at Bascom, and stated further that this was the only letter he had ever at any time received from Alfred Nickles. Under these circumstances we think that the letter was sufficiently identified as having been sent by said Nickles to render it admissible. It was admissible because of its tendency to show the great bias of the witness Alfred Nickles in favor of his son, the defendant, and was valuable as evidence only for the purpose of affecting his credibility as a witness, and to this purpose the court expressly confined it by explicit instructions to the jury.

The fourth assignment of error insisted on here is the refusal of the court to give a charge requested by the defendant. There was no error in this, since the pith and substance of the refused instruction had been already given by the court to the jury in more amplified form, and there was no error in the court’s refusal to reiterate it by giving the charge requested.

The defendant moved in arrest of judgment on the ground that the verdict was not for any offense known to the laws of Florida, the verdict being as follows: “We, the jury, find the defendant guilty of assault with intent to murder in the first degree.” This motion was denied and such ruling constitutes the fifth asignment of error argued here. The contention here is that this verdict is faulty because of its omission of the word “commit,” that it should have been: “We, the jury, find the defendant guilty of assault with intent to commit murder in the first degree.” There is no merit in this contention. The word “murder” is often used in.the dual character of both a noun and a verb. When it is said that A concealed himself with intent *51to murder B, it is understood that his purpose was to commit murder upon B, without the use of the verb commit, and the form of the verdict here shows that the expression “to murder” was ,used in the sense of a verb, and sufficiently shows the purpose of the jury to convict the defendant of the crime charged, vis: of an “assault with intent to commit murder.”

The sixth and last assignment of error urged here is the denial of the defendant’s motion for new trial. The only ground of this motion argued here is that the evidence was insufficient to sustain the verdict. Without reiterating it here, we think that the verdict was amply sustained by the evidence on behalf of the State, which seems to have been believed by the jury.

Finding no error in the record, the judgment of the Circuit Court in said cause is hereby affirmed; and, as the defendant showed by his own oath and other evidence, that he was insolvent and unable to pay the cost in the case in whole or in part, it is ordered that the cosr of this writ of error be paid by the county of Jackson.

Hocicer and Cocicrell, JJ., concur.

Shackleford and Whitfield, JJ., concur in the opinion.

Carter, J., dissents.