Plaintiff in error was convicted of manslaughter under a count in an information charging manslaughter under the provisions of Section 5563 R.G.S., 7749 C.G.L. *Page 419
Plaintiff in error presents two questions for our consideration as follows:
"Is the evidence in this case sufficient to sustain the verdict of the jury?"
"Does it constitute reversible error for the State's Attorney to make a statement before the jury that he guessed he would have to produce the records (meaning records of previous convictions of defendant) when no such records existed and the defendant had never been convicted of any crime?"
The record contains ample evidence to sustain the verdict and judgment. That the jury believed the evidence instead of that which was contradictory to it is evidenced by the verdict. That the trial court approved the result reached by the jury is evidenced by the order denying new trial. There is nothing to indicate that the jury was not governed by the evidence. We should not, under the state of the record here, reverse the judgment because of insufficiency of the evidence. Robinson v. State, 69 Fla. 521, 68 So. 649; Broxson v. State, 99 Fla. 1187,128 So. 628, and authorities there cited.
The second question is based on matters which occurred in the course of the trial when Mrs. Grady was on the stand as a witness in her own behalf, as follows:
"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.
"BY MR. HUNTER: I will withdraw the question, and bring in the records.
"BY THE COURT: And the answer is stricken. *Page 420
"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 The question has been withdrawn and the answer stricken; that is entirely out of the picture. All questions about other crimes or convictions has nothing to do with this case at all."
The statement made by the State's Attorney and objected to was improper, but it was not of such a nature as to probably lead to a miscarriage of justice or to prejudice the defendant. Aside from this, it is apparent that the irregularity was immediately cured by the action of the trial court, as shown by above quotations from the record. The rule in this regard is stated in Wall v. Little, 102 Fla. 1015, 136 So. 676, and is supported by many authorities there cited, as follows:
"When improper evidence is elicited or when evidence is volunteered, or when improper conduct on the part of attorneys occurs, the charge of the trial court directing the jury to disregard such testimony, or such conduct cures the error and corrects the irregularity."
So I think the judgment should be affirmed.
WHITFIELD, J., concurs.