FIERCE PALMORE, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Fierce Palmore appealed his conviction for assault with intent to commit manslaughter, asserting six errors. The Florida Supreme Court affirmed the conviction, finding that Palmore failed to properly present his appellate arguments, particularly regarding excluded testimony about a prior difficulty with the assault victim.
The court affirmed the conviction, holding that Palmore failed to comply with the requirement of properly presenting assignments of error based on the exclusion of testimony to an appellate court in a manner that demonstrates the excluded testimony was relevant, material, and proper to be admitted.
“assignments based upon the exclusion of testimony to be available must be so presented to an appellate court as to make it appear that the excluded testimony was relevant and material, or otherwise proper to be admitted”
Establishes the procedural requirement for challenging excluded testimony on appeal
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Join FLexlaw to unlock all legal intelligenceFierce Palmore was convicted of assault with intent to commit manslaughter. At trial, Palmore sought to introduce evidence of a previous difficulty or…
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Shackleford, C. J.
Fierce Palmore seeks relief here from a conviction of the crime of assault with intent to commit manslaughter. Six errors are assigned, the first of which is based upon the order overruling the motion for a new trial, but, as this assignment is not argued here, it must be treated as abandoned. Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep.
656. We would further call attention to the fact that this assignment could not be considered by us for the reason that such motion, with the ruling thereon and the exception to such ruling, are not evidenced to us by the bill of exceptions, but appear only in the record proper. See Johnson v. State, 53 Fla. 42, 43 South. Rep. 430, and Bell v. Niles, 61 Fla. 114, 55 South. Rep.
392. The five remaining assignments are grouped together and are argued in the most general way. They are all based upon the refusal of the trial court to permit the defendant to show a previous difficulty between him and the person upon whom the assault was made some four or five months pxdor thereto. We have repeatedly held that assignments based upon the exclusion of testimony to be available must be so presented to an appellate court as to make it appear that the excluded testimony was relevant and material, or otherwise proper to be admitted. Boykin v. State, 40 Fla. 484, 24 South. Rep. 141; Wright v. State, 42 Fla. 239, 27 South. Rep. 863; McCall v. State, 55 Fla. 108, 46 South. Rep. 321; McKinnon v. Lewis, 60 Fla. 125, 53 South. Rep. 940; Covington v. Clemons, 61 Fla. 151, 55 South. Rep.
81. It is sufficient to say that the plaintiff in error has failed to comply with this requirement, as laid down in the cited cases.
Judgment affirmed.
Taylor, Cockrell, Hocker and Whitfield, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Alexander v. Rhine, 78 Fla. 313 (Fla. 1919)…ust be embodied in the bill of exceptions, together with the ruling thereon and the exception to such ruling, in order to present to the appellate court for consideration an assignment of error based upon the denial of such motion. Palmore v. State, 65 Fla. 539, 62 South. Rep. 581, and earlier cases there cited. For the reasons stated, the judgment should be affirmed. Per Curiam. — The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837 Acts of…
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Granquist v. State, 86 Fla. 32 (Fla. 1923)…g the motion for a new trial, with the exception to the ruling, is not incorporated in it, so this ruling could not be reviewed. Revell v. State, 85 Fla. 402, 96 South. Rep. 156; Alexander v. Rhine, 78 Fla. 313, 82 South. Rep. 831; Palmore v. State, 65 Fla. 539, 62 South. Rep. 581; Cooper v. State, 47 Fla. 21, 36 South. Rep. 53; McDonald v. State, 46 Fla. 149, 35 South. Rep. 72. The judgment is affirmed.. Taylor, C. J., and Whitfield, Ellis, Browne and Terrell, J. J., concur.…
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Jarvis v. State, 73 Fla. 635 (Fla. 1917)…that assignments based upon the exclusion of testimony to be available must be so presented to an appellate court as to make it appear that the excluded testimony was relevant and material, or otherwise proper to 'be admitted. See Palmore v. State, 65 Fla. 539, 62 South. Rep. 581, where numerous prior decisions of this court are cited. It is sufficient to say that the defendant has failed to comply with this requirement, as laid down in the cited cases. Leaptrot v. State, 51 Fla. 57, 40 South. Rep. 616, c…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoodless v. Jernigan, 46 Fla. 213 (Fla. 1903)
- Attaway McKinnon v. Lewis, 60 Fla. 125 (Fla. 1910)
- Bell v. Niles, 61 Fla. 114 (Fla. 1911)
- Boykin v. State, 40 Fla. 484 (Fla. 1898)
- Bart McCall v. State, 55 Fla. 108 (Fla. 1908)
- Johnson v. State, 53 Fla. 42 (Fla. 1907)
- Covington v. Clemmons, 61 Fla. 151 (Fla. 1911)
- Will Wright v. State, 42 Fla. 239 (Fla. 1900)