Vickery v. State

Citations

• 50 Fla. 144

Syllabus

<p>1. Questions relating to tbe credibility of a witness are material and proper on cross examination and tbe testimony thus sought may form tbe basis for impeaching tbe witness.</p> <p>2. Statements made by tbe deceased four, five or ten minutes after a fatal shooting as to who shot him and whether or not the defendant shot him, are not a part of the res gestae when it is not shown what transpired between the shooting and «the time stated so as to make it clear that the supervening circumstances, including the statements enquired about, were all the product of and a part of the difficulty itself.</p> <p>3. Declarations of a person shot made four, five or ten minutes after the shooting which do noit appear to have been the product of or a part of the difficulty are not a part of the res gestae and are properly excluded.</p> <p>4. It is within the discretion of the trial court to refuse to allow all the witnesses to he sworn on voir dire before they are sworn as witnesses, as such a course might seriously impede the trial. If a witness is not competent to testify it may he disclosed when he is called to testify.</p> <p>5. In a prosecution for murder a charge that “in this case there is no denial of the unlawful lulling of I. J., hut defendant set up as his defense that some other person than he did the shooting and killing; that he did not do. it,” is erroneous where there is a plea of not guilty and the urn lawful killing is not admitted by the defendant, as the presumption of innocence follows the defendant until his guilt is proven beyond a reasonable doubt.</p> <p>6. The correctness of a charge on a higher grade oí ofiense than that of which the defendant has been convicted becomes immaterial, and no error can be predicated thereon.</p>