Opinion
No. 66-928.
August 8, 1967.
Appeal from the Criminal Court of Record, Dade County, Paul Baker, J.
Robert L. Koeppel, Public Defender, and Phillip A. Hubbart and Marvin J. Emory, Jr., Asst. Public Defenders, for appellant.
Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.
Before CHARLES CARROLL, C.J., BARKDULL, J., and LOPEZ, AQUILINO, Jr., Associate Judge.
This is a battered child syndrome case. Appellant seeks review of his conviction and sentence to three years in the State penitentiary.
On December 21, 1965, the appellant carried his wife's minor daughter, Angela Denise Jones, to the Magnolia Clinic in Opa Locka, Florida. The child was dead on arrival, dying from a rupture of the liver. The appellant was charged by information with the crime of murder in the second degree. He pleaded not guilty to the charge and waived jury trial. The cause proceeded to trial, at which the appellant's wife testified [over appellant's objection] about a previous act of violence committed by the appellant against the deceased child, involving a grapefruit. At the conclusion of the trial, the trial court found the appellant guilty of manslaughter and entered the conviction and sentence appealed herein.
The appellant contends that the trial court erred in permitting his wife to testify concerning a prior act of violence committed by him against the deceased child, on the ground that said testimony is inadmissible into evidence, falling within the husband and wife privilege. We disagree upon the authority of Porter v. State, Fla. 1964, 160 So.2d 104.
The wife's testimony was to an event, not to a communication. Moreover, the evidence was merely cumulative and we find no error in the trial court's ruling in this regard.
Affirmed.