TOM LAWRENCE, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Maxwell, J.

The plaintiff in error was convicted of the crime of murder in the second degree, and sued out writ of error from this court.

His first assignment of error is based upon the action of the Circuit Judge in cautioning the jury that “the jury are expected to stay awake during the progress of this trial, and if one of you should go to sleep while ' a witness is testifying it Avould be a ground for a new trial in the eA’ent of a conviction.” It is urged that in delivering this instruction the pause of the trial judge before the Avords “in the eA’ent of a conviction” tended to produce the impression upon the jury that the judge thought the defendant, guilty. The maimer of the delivery of this caution is not reproduced to this court, nor does the record attempt to describe it. But eA'en if the remark as made by the judge aaüis improper, no exception Avas taken to it in ihe court below, and it can not be considered here. Garner v. State, 28 Fla. 113, 9 South. Rep. 835; Roten v. State, 31 Fla. 514, 12 South. Rep. 910; People v. Shelters, 99 Mich. 338, 58 N. W. Rep. 362; Vass v. Town of Waukesha, 90 Wis. 337, 63 N. W. Rep. 280.

The second and sixth assignments Avill be considered together. The first of these relates to the refusal of the trial court to admit evidence as to the dangerous character of the deceased. He was killed by a shot in the back while sitting with companions around a light at night. The-testimony, therefore, was not offered in aid of a plea of self-defense, but as tending-to sIioav 'hat some third person may have been the assassin. Tim sixth assignment complained of the action of the court' in excluding from the jury testimony that one Ymll Smith and the deceased Je«se Johnson had been pavía, attention to the same girl, and a week before .he aauis killed Johnson said to a Avitness that “Smith is trying m go between him and the girl, and that he. was going to do something about it,” and that on the day before the shooting he said to the Avitness “I got to do that thing, that that felloAv Avas trying to come between him and that girl.” This testimony, too, is offered for the purpose of showing that some one other than the defendant had a motive for killing Johnson. These very vague threats were uttered by the deceased. ZsTo action looking to their execution is shown, nor were they comma nivaled to Smith, and no evidence is offered tending lo show that Smith did in fact commit the crime.

The question, to what extent one charged with a crime may defend by showing some third person to be the guilty i>artjr, has often been before the courts and, in discussed in the folloAving cases: Banks v. State, 72 Ala. 522; Levison v. State, 54 Ala. 520; State v. Beaudet, 52 Conn. 536, 4 Atl. Rep. 237; State v. Hawley, 63 Conn. 47, 27 Atl. Rep. 417; Commonwealth v. Abbott, 130 Mass. 472; State v. Davis, 77 N. C. 483; State v. Gee, 92 N. C. 756; State v. Lambert, 93 N. C. 618; Ex Parte Gilstrap, 14 Tex. App. 240; Murphy v. State, 36 Tex. Crim. Rep. 24, 35 S. W. Rep. 174; Crookham v. State, 5 West Va. 510. None of them authorizes an accused to defend by raising so vague a suspicion of guil: in another as is attempted here, and the court I)s1oav committed no error in excluding such testimony.

One Mason, a State Avitness, had testified that he Jived 120 yards from the defendant’s house, on the opposue side of it from that on which Johnson was killed; thar he heard the shot fired and just afterAvard heard persons running. One x>assed witness’ house. He then heard another running beyond defendant’s house from (he du-ection of the house of one Moore, which was in rhe direction of the shooting, and some one stopped just chore the defendant’s house and went into his gate. The defendant offered the testimony of one Baty to the-effect that he had gone to Mason’s house and had a man ¡•mi fiom Moore’s house to the house of defendant, and did not hear him except when he fell over a stump. Tics testimony was rejected by the court and this ruling forms the basis of the 4th and 5th assignments of error. •In order that experimental evidence of this nature #should be valuable or even admissible, it must appear that the .experiment was performed under conditions similar to those existing at the time of the event to be tested thereby. 12 Am. & Eng. Ency of Law 406, 2n 1 ed. The inference sought to he raised by the eviilencc. was, of course, that Mason heard the defendant running as stated, and it was this which the defendant sought to rehuí. The point to he determined by experiment was whether the defendant could be heard running as stated. 'Whether the runner making the experiment was as compared with the defendant large or small, a light runner or a heavy one, whether the atmospheric conditions and the general condiiions as to noise or quiet were similar to those existing when Johnson was shot, and whether the sense of hearing in the two men was equally keen, the court was not informed. Evidence of the test was therefore properly excluded.

It is assigned as error that the court permitted the in- ; tod.;<•<:<..: of Estimo, y Cmt E.o ToL:m..n, In the afternoon of the day he was killed, shot the stepdaughter of the defendant. This was evidence pertinent as showing a motive for the act charged against the dej.-ndant, ami its almission was proper. '

Under an assignment based upon the denial of a new' trial by the court below, the plaintiff in error contneds that the verdict is not supported by the evidence. The contention is without merit. The corpus delicti was clearly shown by direct evidence. Tn addition to circumstautial evidence along the lines indicated in the previous pages of this opinion pointing to the defendant as the guilty party', 'there is the evidence of two witnesses, companions and fellow-laborers of the defendant, ayIio testify that he admitted to them that he had killed Johnson for being a bully and for shooting his, the defendant’s stepdaughter. This disposes of all the errors alleged on behalf of the plaintiff in error except one which is not presented by the assignments of error filed by him in this court as required by section 1276 of the Revised Statutes, and which is, therefore, not considered by us.

The judgment of the court below is affirmed.