EUGENE GATES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the wife's testimony about a prior act of violence was admissible, as it concerned an event and was not privileged communication.
Appellant was convicted of manslaughter after his stepdaughter died from a liver rupture. The trial court allowed the appellant's wife to testify abou…
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This is a battered child syndrome case. Appellant seeks review of his conviction and sentence to three years in the State penitentiary.
On December 21, 1965, the appellant carried his wife’s minor daughter, Angela Denise Jones, to the Magnolia Clinic in Opa Locka, Florida. The child was dead on arrival, dying from a rupture of the liver. The appellant was charged by information with the crime of murder in the second degree. He pleaded not guilty to the charge and waived jury trial. The cause proceeded to trial, at which the appellant’s wife testified [over appellant’s objection] about a previous act of violence committed by the appellant against the deceased child, involving a grapefruit. At the conclusion of the trial, the trial court found the appellant guilty of manslaughter and entered the conviction and sentence appealed herein.
The appellant contends that the trial court erred in permitting his wife to testify concerning a prior act of violence committed by him against the deceased child, on the ground that said testimony is inadmissible into evidence, falling within the husband and wife privilege. We disagree upon the authority of Porter v. State, Fla. 1964, 160 So.2d 104.
The wife’s testimony was to an event, not to a communication. Moreover, the evidence was merely cumulative and we find no error in the trial court’s ruling in this regard.
Affirmed.
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Citator
Cited By
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Wilton A. Ross v. State, 202 So. 2d 582 (Fla. 1st DCA 1967)…evidence in civil cases shall obtain also in criminal cases, except in eases otherwise provided by law.” . Cox v. State, (Fla.App.1966) 192 So. 2d 11, 13. . Porter v. State, (Fla.1964) 160 So. 2d 104, 110. . See also Gates v. State (Pla.App.1967) 201 So. 2d 786, opinion filed August 8, 1967. . P.S. § 924.33, P.S.A. “When judgment not to he reversed or modified No judgment shall be reversed unless the appellate court after an examination of all the appeal papers is of the opinion that error was committed…
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Kerlin v. State, 352 So. 2d 45 (Fla. 1977)…enied the objection, and on further cross-examination, petitioner could not recall the content of any conversation with his wife. The District Court of Appeal, Fourth District, affirmed the judgment and sentence “on the authority of Gates v. State, 201 So. 2d 786 (3d D.C.A., Fla.1967) and Ross v. State, 202 So. 2d 582 (1st D.C.A., Fla.1967).” This cause brings before us the application of the privilege for communications between husband and wife and, more particularly, the question of whether this privilege…1 / 3
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Kerlin v. State, 351 So. 2d 1026 (Fla. 4th DCA 1976)…ions between spouses and hence such statutes have nothing to do with the instant case. Mercer v. State, supra; Porter v. State, 160 So. 2d 104 (Fla.1963); Ross v. State, 202 So. 2d 582 (1st DCA FLa.1967). The majority decision cites Gates v. State, 201 So. 2d 786 (3d DCA Fla.1967); Ross v. State, supra; Porter v. State, supra, and Mercer v. State, supra, as a basis for affirmance and so a discussion of them is in order. The Mercer holding has already been outlined and it obviously would require a reversal —…1 / 2
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- Wilder v. State, 160 So. 2d 104 (Fla. 1964)