JOSEPH POWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in failing to declare a mistrial or strike testimony, as objections were not raised at trial or the testimony was admissible.
The defendant was convicted of second-degree murder. On appeal, the defendant argued the trial court erred by not striking testimony where a witness r…
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Appellant was tried and convicted on an information charging murder in the second degree. H was represented by a public defender throughout the trial.
Two questions are argued on this appeal. The first is:
“The trial court erred in failing to declare a mistrial or to strike the testimony of the witness Marie Hill, of its own motion, when it appeared that Mrs. Hill constantly referred to the victim as her husband, throughout her testimony.”
A similar question was before this court in Wolfe v. State, Fla.App.1967, 202 So.2d 133.
In the case at bar deceased’s widow was called to testify on the state’s behalf. Important events in the case had taken place in her presence. Her testimony was offered in support of the prosecution. It was against the defendant. No objection was made when the particular testimony now challenged was offered. There may have been a good reason for withholding objection. It is possible that defendant’s counsel at the time preferred to have the witness establish the relationship for impeachment purposes. It would be arguable that the witness’ testimony should be discounted because of her close relationship to the deceased. Thus it might well have been considered at the time that the testimony in question was useful to the defendant.
It is well-settled that questions of this character may not be raised for the first time on appeal. See Fitzgerald v. State, Fla.App.1967, 203 So.2d 511.
The second question is:
“The Court committed error in failing to strike the testimony of the witness, Jack Bushor, over objection of the defense when Jack Bushor testified that he had seen the defendant strike the victim’s wife, Mrs. Marie Hill.”
The incident in question as described by the witness was part of the res gestae and the testimony was not objectionable.
Affirmed.
REED and OWEN, JJ., concur.
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Barrett v. State, 266 So. 2d 373 (Fla. 4th DCA 1972)…this created “fundamental error” thereby entitling him to a new trial at our hands even absent a timely objection in the trial court. This view has been rejected, either expressly or impliedly, in Rowe v. State, supra; Powell v. State, Fla.App.1968, 208 So. 2d 146; and McGriff v. State, supra. Furthermore, we know that there are times when it is entirely proper (even over timely objection) for a relative of the homicide victim to identify the deceased victim, e. g. Scott v. State, supra; Megill v. State, Fla.…
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Wheelis v. State, 340 So. 2d 950 (Fla. 1st DCA 1976)…hole, The evidence would have been admitted to show their acts occurring at the same time and place and which were integral to the conduct for which they were prosecuted. Washington v. State, 118 So. 2d 650, 653 (Fla.App.2d, 1960); Powell v. State, 208 So. 2d 146 (Fla. App. 4th, 1968); Smith v. State, 311 So. 2d 775 (Fla.App.3d, 1975), cert. den. 327 So. 2d 35 (Fla.1976); 2 P. Herrick, Underhill Criminal Evidence § 266 (5th ed., 1976 cum. supp.). The same doctrine makes relevant the testimony here excluded.…
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Boyce Lee Russell v. Louie L. Wainwright, 266 So. 2d 375 (Fla. 4th DCA 1972)…victim’s son as a witness. The absence of a timely objection at trial will preclude a consideration of the issue on appeal. Rowe v. State, 1935, 120 Fla. 649, 163 So. 22; McGriff v. State, Fla.App.1970, 232 So. 2d 454; Powell v. State, Fla.App.1968, 208 So. 2d 146. The argument submitted here that this is “fundamental error” and thus necessarily entitles Russell to a new trial despite the absence of any timely objection in the trial court, is unsound and has been answered by our opinion in the case of Barrett…
Authorities Cited
- Malvina N. Fried v. Sorrel Rose Bollet, 206 So. 2d 47 (Fla. 4th DCA 1967)
- Wolfe v. State, 202 So. 2d 133 (Fla. 4th DCA 1967)
- Fitzgerald v. State, 203 So. 2d 511 (Fla. 2d DCA 1967)