# Custer v. State

> Supreme Court of Florida · July 15, 1947 · 159 Fla. 574

URL: https://www.frixlaw.com/law-library/cases/3389286

## Case

- **Full name:** Jack Riley Custer v. State of Florida
- **Court:** Supreme Court of Florida
- **Decided:** July 15, 1947
- **Citations:** 159 Fla. 574; 34 So. 2d 100; 1947 Fla. LEXIS 899
- **Precedential status:** Published
- **Opinion:** Addendum
- **Judges:** Adams, Buford, Chapman, Kanner, Terrell, Thomas, Williams
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3389286

## Opinion text

On July 15, 1947, we affirmed without opinion a conviction against this appellant of the crime of rape wherein he was found guilty with a recommendation and sentence to life imprisonment. Dissenting opinions were filed by Mr. Justice BUFORD in which Mr. Justice TERRELL concurred. Associate Justice Ross Williams, a Circuit Judge sitting in the absence of Mr. Justice SEBRING, also filed a dissenting opinion.
Subsequently we granted a rehearing and reargument and now proceed to reconsider the case as the court was constituted at the time of our former decision. See Fla. Motor Lines, Inc., v. Hill, 106 Fla. 33 , 143 So. 261 .
When the mother of the prosecutrix was a witness for the state and being interrogated by the state attorney the following occurred:
"Q. Mrs. Bowers. What did Mary Lou report to you that happened to her while she was gone?
"Mr. Roach: Just a minute, if it please the Court. Anything that Mary Lou told her unless it was in the presence of this defendant is not admissible and we object to her even answering those questions.
"Mr. Maire: My understanding has been that there has always been a rule in a rape case that the party is supposed to report it, how far we should be allowed to go into that I don't know. *Page 595
"The Court: I think it is admissible because it is the first opportunity she had according to the evidence to make any statement, and she must make a statement at the first opportunity. All right, answer the question.
"Mr. Maire: What did she tell you after she got home?
"A. She told me she was walking along the street with this girl friend and that this man drove along in the car and got out and hit her over the head and forced her to get in the car and drove her back in the country somewhere and forced her to get out of the car, undress, and he attacked her.
"Q. How did she state she was attacked at that time?
"Mr. Roach: If it please the Court, we wish to interpose an objection to the tales of what happened. He has gone beyond the period of reporting the thing as he says he thinks he has a right to do, and any detailed conversation as to what happened out there, or what this girl told her, not in the presence of the defendant, we wish to object to it.
"The Court: I think it is admissible under the rule in regard to rape. There must be some statement made as soon as possible.
"Mr. Roach: The witness, if it please the Court, states that she knew the girl across the street, her people had called the police and reported it. Now he is going into a detailed statement as to what somebody told her outside the presence of this defendant bolstering the witness that he had.
"The Court: Overruled.
"Mr. Maire: Q. Go ahead and say what she told you, tell it in a little more detail. You said she said she had been attacked, how did she say she had been attacked?
"A. She said that this man took off his clothes and well I can't tell you exactly as she told me, she didn't know how to tell it really.
"Q. She must have told you some way.
"A. Well, it was by my questioning her. I asked her what he did to her and she told me in her own way.
"Mr. Roach: If it please the Court, that testimony shows it was not a voluntary statement on the part of this girl, and we wish to interpose objections as to what her questions *Page 596
brought out from the complaining witness not in the presence of the defendant.
"The Court: Overruled.
"Mr. Maire: Q. What did she tell you had happened?
"A. Well, —.
"Q. Now, you have testified that she said the man hit her over the head?
"A. Yes.
"Q. Is that all she told you?
"A. Oh, no, I told you he took her back to this place, deserted place where there were no houses, and that he exposed himself and had her take off her clothes and attacked her.
"Q. Well, now there are various methods of attack, how did she say he attacked her?
"A. Well, I'd say he had intercourse with her.
"Q. Well, what did she say, what did the little girl say?
"A. She didn't know, she was innocent, she didn't know how to tell it. I kept questioning her when she told me he took her where she said he attacked her, I kept asking her and in that way drew it out.
"Q. Did she tell you the manner in which she did it so you could know that was what happened?
"A. Yes.
"Q. Did you examine the little girl?
"A. I didn't examine her, but I took her to the hospital immediately.
"Q. You never examined her at all yourself?
"A. No.
"Q. You, of course, knew nothing what happened except what the little girl told you?
"A. That is right.
"Q. Did she give you a description of the automobile?
"A. Yes.
"Do you remember what kind of description she gave of it?
"A. Yes, I heard the description from the police.
"Q. Well, did she give you a description of it when she got home? *Page 597
"A. She told different things that were in the car, the mirror, there was something peculiar, a little different about the mirror, there was a little doll hanging on the mirror, a suitcase in the car, and a blanket on the back seat, and something on the floor of the car, she learned afterwards was a muffler. There was an empty candy box on the seat.
"Q. Did she give a description of the man that she claimed attacked her?
"A. She said she would know him again.
"Q. Did she give you a description?
"A. She said his hair seemed to have a dressing of some kind on it, that it stood up high, he had heavy eyebrows, and he was tall.
"Q. Is that in substance what she told you immediately upon her return to home?
"A. Yes."
The only reservation of this error in the motion for a new trial was in ground No. 8, which reads:
"Because the Court erred in the admission of certain evidence during the trial of the cause offered by the State over the objection of the defendant."
There can be no doubt of the error in allowing the mother of the girl who was raped to state in detail the circumstances going to prove the crime. It is even more objectionable because the mother relates not merely what her daughter said but from what was told her she drew her own inference and conclusion and gave these to the jury. This procedure has been disapproved as far back as Ellis v. The State of Florida, 25 Fla. 702 , 6. So. 768. Complaint soon after the occurrence is permissible not to prove the crime itself, but to rebut the inference of consent which might be drawn from her prolonged silence.
The state insists that the judgment should not be reversed from this error because it was not saved by the motion for a new trial inasmuch as ground No. 8 above quoted was too general. This position is unsound. The rule prevailing here has been stated. Warner et al. v. Goding, 91 Fla. 260 , 107 So. 406 . (Headnotes). *Page 598
"8. A motion for a new trial is not a waiver of exceptions, and if for any reason such motion cannot be considered in this court and the exceptions taken during the trial are properly embodied in the record, we can review the ruling of the Circuit Court in this respect.
"9. The primary purpose of a motion for a new trial under our practice is to test the sufficiency of all the evidence to sustain the verdict, though any portion of the evidence of a material witness may be reviewed by this court if such evidence was duly excepted to at the trial or hearing in the absence of a motion for a new trial."
The state also contends that the error was not assigned in this court and should not be considered. In this contention the state presupposes that this is not what may be regarded as a fundamental error. By an unbroken line of decisions in civil and criminal cases we are committed to the rule that a fundamental error may be reviewed though not assigned. Gover v. Braddock, 100 Fla. 1406 , 131 So. 407 ; White v. Crandall, 105 Fla. 70 , 137 So. 272 ; East Coast Stores v. Cuthbert, 101 Fla. 25 , 133 So. 853 ; Bynum v. State of Florida, 76 Fla. 618 , 80 So. 572 . In the latter case the judgment was reversed for failure to grant a motion for new trial even though the error was not assigned.
Gunn v. State of Florida, 78 Fla. 599 , 83 So. 511 , in this case the judgment was reversed because of an erroneous charge involving a presumption of guilt though there was no assignment of error thereon.
To say that something is fundamental is to comprehend a primary factor as basically essential to the object and purpose in view. Here the purpose is the administration of justice in keeping with the Constitution. Convictions or hearsay testimony were disapproved long before the adoption of our Constitution and Bill of Rights which were promulgated in keeping with the established principles of the Common Law. The passage of time has shown that no phase of our law affords greater protection to personal liberty than the observance of tried and proven rules of evidence.
In this case ample opportunity was given the trial court to rule upon the objectionable testimony. Although no specific *Page 599
assignment of error was filed in this Court the question has been strenuously argued. The charge is a most serious one. The error is most apparent in character and degree. From all these facts we are driven to the conclusion that the judgment must be reversed and a new trial awarded. We have examined the other assignments of error but find them without merit.
Reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3389286. Public record. Not legal advice.