DAN MAYO, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a conviction for manslaughter, holding that a witness's opinion testimony about what the deceased could have done was improperly admitted but not harmful error, as conclusions of fact are for the jury.
No, the trial court's action was not harmful error. While the objection was sustained, the testimony was not struck or ordered disregarded, and the quoted language expressed an opinion rather than a fact, which is for the jury to conclude.
“While testifying as a witness the defendant Mayo in support of his act as being in self defense stated that the deceased “could have cut me if I had waited any longer to shoot him.””
This quote describes the defendant's testimony that formed the basis of the appeal.
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Join FLexlaw to unlock all legal intelligenceDuring a manslaughter trial, the defendant, testifying in his own defense, stated that the deceased "could have cut me if I had waited any longer to s…
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Whitfield, C. J.
This writ of error was taken to a conviction of manslaughter. An assignment of error is predicated upon the overruling of an objection to a question, but as the question does not appear to have been answered the assignment is unavailing. While testifying as a witness the defendant Mayo in support of his act as being in self defense stated that the deceased “could have cut me if I had waited any longer to shoot him.” The State Attorney objected to this language as calling for the opinion of the witness. The objection was sustained and an exception noted for the defendant. As the Court merely sustained the objection to the testimony and did not strike it or direct the jury to disregard it, the question may not be properly presented, but there was no harmful error in the action of the Court, since the quoted language expressed an opinion rather than a fact. The circumstances were in evidence and conclusions of fact are properly drawn by the jury and not by ordinary witnesses. The defendant was permitted to testify as to his belief of his danger from the deceased. The conflicts in the testimony were settled by the jury, and as there is ample evidence to sustain the verdict and no material errors of law appearing, the judgment is affirmed.
Taylor, Shackleford, Cockrell and Hocker, J. J.,' concur.
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Linsley v. State, 88 Fla. 135 (Fla. 1924)…te, 75 Fla. 815, 78 South. Rep. 535; McQuagge v. State, 80 Fla. 768, 87 South. Rep. 60. Assignments of error not argued are abandoned and will not be considered by the Appellate Court. McNish v. State, 47 Fla. 69, 36 South. Rep. 176; Mayo v. State, 64 Fla. 95, 59 South. Rep. 861; Lindsey v. State, 67 Fla. 111, 64 South. Rep. 501. This Court has said in many civil eases that the practice of assigning a large number of errors is reprehensible. See Hoopes v. Crane, 56 Fla. 395, 47 South. Rep. 992; Mitchell…
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Boyington v. State, 77 Fla. 602 (Fla. 1919)…is wrung and unjust. Padgett v. State, 64 Fla. 389, 59 South. Rep. 946. See also Smith v. State, 66 Fla. 135, 63 South. Rep. 138; McClellan v. State, 66 Fla. 215, 63 South. Rep. 419; Andrews v. State, 65 Fla. 377, 61 South. Rep. 975; Mayo v. State, 64 Fla. 95 [*605] 59 South. Rep. 861; Barrentine v. State, 72 Fla. 1, 72 South. Rep. 280. The evidence in this case is conflicting; but there is positive testimony, which the verdict indicates the jury believed, that is amply sufficient to sustain the verdict…