Samuel Stewart and Lennie Stewart, Plaintiffs in Error, vs. The State of Florida, Defendant in Error, 42 Fla. 591

Carter, J.: On June 20th, 1899, plaintiffs in error were tried and convicted in the Criminal Court of Record of Hills-borough county, upon an information charging that they in that county, on September 1, 1898, “being and knowing themselves to be persons within the degrees of consanguinity within which marriages are prohibited, and being forbidden to intermarry by reason that said Samuel Stewart was a brother of the said Lennie Stewart, did then and there unlawfully and feloniously commit incestuous fornication, and did then and there incestuously have carnal knowledge each of the body of the other, against the form of the statue,” etc., and from the sentence imposed upon them sued out this writ of error.

Though various grounds of error are assigned, only one of them is argued in-the brief filed in this court. The others under the prevailing practice must be treated as abandoned. The principal witnesses for the State were James Bird and Henry Bird, who claimed to have witnessed

an act of sexual intercourse between the plaintiffs in error in May, 1898. James Bird stated that it was on Saturday before the third Sunday in May, about the 14th day, that when he returned home that day he looked at the calendar because he was afraid the matter would he called, and he knew it was on or about the 14th day of May. Henry Bird stated that it occured about May 14, 1898; and, on cross-examination, that when they reached home James Bird looked at the almanac and said it was the 14th; that he asked James Bird to be certain and the latter told him it was the 14th.

He was then asked on cross-examination, whether he did not meet John Browning on his way to see Whidden sometime within a week when he was on his way to town and asked him what time it was that the act occurred, and if he did not ask him as to what day it was said to have, occurred, to all of which the witness gave a negative answer.

Plaintiffs in error produced John Browning as a witness who stated that he remembered: a conversation he had with Henry Bird on the way to town, when Bird was on his way to Whidden’s, and was then asked to state what that conversation was, -to Which the prosecuting attorney objected, and the judge remarked he could not See the materiality; that the question propounded to Bird on cross-examination was new matter, collateral and immaterial to the issues. The, question was then renewed in this form: “state what this conversation was. Now Mr.

Browning, go on and state what he asked you in reference to when he said this thing occurred?” The answer to this question was excluded on the ground that it was immaterial and irrelevant, .to which ruling an exception was taken. The answer so excluded was as follows: “lie asked me three different times since these folks have been arraigned if I knew what the date was.

I told him that I did not know-; that I did not exactly to a day what the date was, but I knew near about it, and then he tried to get me to tell what it was, and I told him I would tell it here.”The assignment of error argued is based upon this exception, and the argument is that the testimony was proper, because it tended to impeach the witness Henry Bird by contradicting him.

The acts and conduct of a witness relative to the matter in controversy which are inconsistent with his testimony, likewise his motives, interest, or animus as connected with the cause, or with the parties thereto, may be proven for the purpose of weakening the force of bis testimony. And for the same purpose it is proper to admit evidence of statements made by the witness relative to matters material to the issues contradictory of his testimosy on the trial.

As to all of these matters, if a witness denies or fails to admit, the imparted act, conduct, motive, interest, animus or contradictory statement when interrogated about them on cross-examination, he may be contradicted by other testimony proving them. Bryan v. State, 41 Fla. 643, 26 South. Rep. 1022; 10 Ency. Pl. & Pr. p. 280 et seq. But the answer of a witness on cross-examination respecting any fact irrelevant to the issue will be con,elusive, and no such question can be put on cross-examination merely for the purpose, of impeaching his credit by contradicting him. 3 Taylor Ev. § 1435; Eldridge v.

State, 27 Fla. 162, 9 South. Rep. 448. If we apply these rules to- the testimony here excluded, we will find thie ruling of the court below to- be correct. Strictly speaking, the. excluded testimony did not tend to contradict Bird, for he was asked as to a particular conversation to which it is evident the excluded testimony did not relate. But assuming that it did tend to contradict, it was upon an irrelevant matter.

It was certainly irrelevant to -the issues being tried whether Henry Bird had ever asked Browning if he knew the date the offence was committed, or that he tried to induce Browning to tell him whiat day it occurred. There is nothing in the conduct of Bird or in the nature of the information sought, inconsistent with any fact testified to by him, nor does- such conduct on Ms part tend to show any interest in the cause, or any motive or animus that would affect Ms credibility as a -witness.

There is nothing in the conversations themselves indicating that Bird did not have personal knowledge of 'the commission of the offence, nor does the testimony show that the conversations occurred under such circumstances as to imply a want of such knowledge on the part, of Bird. The proposed testimony Was an attempt to contradict a witness as to an irrelevant collateral matter, drawn out on cross-examination, and was properly excluded. Hubbard v. State, 37 Fla. 156, 20 South. Rep. 235. The, judgment is affirmed.