L. Raymond O'Steen, Plaintiff in Error, v. The State of Florida, Defendant in Error, 92 Fla. 1062

Brown, J. The plaintiff in error was indicted for murder in the first degree and convicted of manslaughter, and sentence of five years imprisonment in the state penitentiary imposed. The case is brought before us on writ of error taken to this judgment of conviction. Only two questions are presented by the assignments of error.

The first question is based upon the refusal of the court to permit counsel for plaintiff in error to propound to the talesmen upon their voire dire examination the following question: “Gentlemen, if the defendant should take the witness stand in this case and testify in his own behalf, would you give his testimony the same consideration that you would give to the testimony of any other witness testifying in the ease?” If the court had permitted this question to be propounded to the prospective jurors, it would have tended to create the impression upon their minds that it was their duty to give the same consideration and weight to the testimony of the defendant that they would accord to the testimony of any disinterested witness or witnesses whose testimony might be introduced upon the trial.

While

section 6080 of the Rev. Gen. Stats, makes the defendant a competent witness in his own behalf, if he desires to testify, it was not designed to have any such effect as that contended for by counsel for plaintiff in error. While he is thus made a competent witness in his own behalf, it is cex’tainly withixx the province of the jury to consider his testimony in the light of the fact that he is the defendant and as such interested ixx the result of the trial. It was held by this Court in the case of Blanton v.

State, 52 Fla. 12, 41 So. 789, that a charge is properly refused which is so framed as to texxd to mislead the jury into the belief that they are bound to lend the same credence to the testimony of the accused as a witxxess on his own behalf, as to that of any disinterested witxxess. It was there said, ixx the opinion by Mr. Jxxstice TAYLOR, “The interest that a witness has in the result of a suit the law recognizes as an element proper to be coxxsidered in weighing his testimony as affecting its credibility. Hampton v. State, 50 Fla. 55, 39 So. 421.

The refused instruction is so framed as to mislead the jury into the idea that they must lend the same credence to the testimony of the accused as to that of any disinterested party, notwithstanding his deep interest in the result of thé trial. Easterlin v. State, 43 Fla. 565, 31 So. 350." See also Robertson v. State, 64 Fla. 437, 60 So. 118. The second question relates to the sufficiency of the evidence, counsel for plaintiff in error earnestly contending that the evidence in the case is not sufficient to sustain the verdict and that the court therefore erred in overruling the motion for a new trial.

After a careful consideration of all the testimony, which it would hardly subserve any good purpose to review in this opinion, we have reached the conclusion that this contention is not well founded. It is especially insisted upon in behalf of plaintiff in error that the evidence shows that he acted in self-defense when he fired the fatal shot or shots.

We are of the opinion that there were sufficient grounds in the testimony for the jury to have inferred that the circumstances attending the killing of the deceased were not sufficient to have induced a reasonably cautious man to believe that such killing was necessary in order to save his own life or to save himself from great personal injury. Smith v. State, 25 Fla. 517, 6 So. 482; Barnhill v. State, 56 Fla. 16, 48 So. 251. The rule laid down in Smith v. State, supra, has been followed in a long line of eases, one of the most recent being that of Ammons v.

State, 88 Fla. 444, 102 So. 642, in which' the holding of this court, as expressed in the third headnote, reads as follows: “In the prosecution of an indictment for murder where the defendant sets up the defense of self defense in that he was defending himself against an attack by the other to commit a felony and there was imminent danger of the design being accomplished, the question of apprehension by the defendant of danger is for the jury and the circumstances as they appear to the defendant must be such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necesity for taking life real. ’ ’ Some of the reasoning underlying this rule is Very well expressed in the text of 13 R.

C. L., see. 121, page 816, as follows: ‘ ‘ The rule is universal that, to warrant taking ■life in self-defense, there must have been reasonable grounds for belief, upon the part of the slayer, that he was in imminent danger, of loss' of life, or of suffering serious bodily harm at the hands of the person killed. The belief need be no more than reasonable, however, and if the slayer acts in good faith and with reasonable judgment and discretion, he will be excused, even though he err. If, however, his error is due to his own fault and negligence, no belief, however, honest, will excuse his act.

If through carelessness or fright, or undue excitement, he takes the life of another, when it is not necessary, and when there is no reasonable ground to believe that it is necessary, he is not excused. Such an emotional state may go in mitigation of the offense and may reduce the grade from murder to manslaughter, but furnishes no complete justification or excuse for the taking of the life. * * '* Whether reasonable grounds existed in any particular ease is a question for the jury’s determination. ’ ’ On Rehearing. 1.

It is not incumbent upon the appellate court, upon rehearing, to consider assignments of error not argued upon the original hearing and hence abandoned by plaintiff in error. 2. When a defendant comes or is brought into court and files a formal plea of not guilty to an indictment, it will be presumed -that he had been formally arraigned thereon or had . waived formal arraignment, and his conviction will not be reversed merely because the record does not expressly show a formal arraignment. The record shows no reversible error and the judgment of conviction must therefore stand affirmed. Affirmed. Ellis, C.

J., and Strum, J., concur. Whitfield, P. J., concurs in the opinion. Buford, J., disqualified. 3. It is indispensable to the legal conviction of a defendant on trial for a felony that he should be personally present in court when arraigned, when tried, and when sentenced, and the record proper as distinguished from the bill of exceptions should show such personal presence; presence by attorney is not sufficient. 4.

If so fundamental a right of the defendant be violated, it is the duty of his counsel to make due objection and exception thereto, and to see to it that the record brought up on writ of error affirmatively shows such absence of the defendant. 5. It has long been the general rule in this jurisdiction that this Court will not consider an assignment of error unless the action of the court below alleged as error affirmatively appears .of record; and added emphasis would appear to have been added to this rule by enactment of the statute api>earing as Sec. 2S12, Rev. Gen. Stats. 6.

It is a general rule of wide application that an appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment or decree from which the appeal was taken. Error is never presumed on apxxeal, but the burden of showing error affirmatively is upon the ai^jellant or plaintiff in error who alleges it, and the ax>pellate court will not, for the purpose of finding reversible eiTor, presume the existence of facts as to which the record is silent. 7.

The plaintiff in error and his attorney are charged with the duty of bringing to the appellate court a correct and truthful transcript of the record in the trial court, and making it thereby to appear that the error, for the commission of which he asks that the verdict and judgment of the trial court he reversed, was committed by such court. : S.

This jurisdiction has long been committed to what is known as the “Orthodox English Rule,” to the effect that error when shown, in order to constitute reversible error, must appear to have been of such a character as to have been prejudicial and injurious in its tendency or effect upon the rights of the party complaining, rather than the “Exchequer Rule” to the effect that an error of ruling, whether harmful or not, creates per se for the excepting party a right to a new trial. !).

The record in this case examined and found to sufficiently show the arraignment of the plaintiff in error and his presence in person during the trial and when the verdict, judgment and sentence were respectively rendered and imposed. 10.

Where, as in this case, the record shows that the defendant was present when his original sentence of imprisonment was imposed by the court, and, by an amendment to the record, it was shown that, on application of counsel for the defendant,. the court later, during the same term, made an order nunc pro tunc changing and reducing the original sentence of imprisonment from six years and one day to five years, and instructing the clerk to correct the minutes of the. judgment and sentence accordingly, which was done, it not affirmatively appearing from the record whether the defendant was or was not present at the time such change was made, no reversible error of which the defendant could complain appears.

Affirmed on rehearing. Edgwr W. Waybright, for Plaintiff in Error; J. B. Johnson, Attorney General, and Boy Campbell, Assistant, for the State.