28 Fla. 511 | Fla. | 1891
William Adams, the plaintiff in Error, Ike Spanish and T. P. Bethea, were jointly indicted on the 26th day of February, A. D. 1891, at a term of the Circuit Court for Columbia county, Florida, for the murder of James Moore. Adams was indicted as principal in the
It is charged in the indictment (the formal parts omitted) “ that William Adams, Ike Spanish and T. P. Bethea, late of said county, laborers, on the 19th day of January, A. D. 1891, at and in the county, circuit and State aforesaid, with force and arms, did then and there, unlawfully, feloniously and of their malice aforethought, and from a premeditated design to effect the death of a human being, make an assault upon one James Moore. And the said William Adams, with a certain double-barrel shot-gun, then and there loaded with gunpowder and leaden balls, commonly called buckshot, and by him, the said William Adams, then and there had and held in 1ns two hands, did then and there unlawfully, feloniously and of his malice aforethought, and from a premeditated design to effect the death of him, the said James Moore, shoot off and discharge at, to, against and upon the body of him, the said James Moore, thereby, and by thus striking the body of him, the said James Moore, with the said leaden bullets, commonly called buckshot, so shot off and discharged out of the double barrel shot-gun aforesaid, unlawfully, feloniously and of his malice aforethought, and from a premeditated design to effect the death of him, the said James Moore, inflicted then and there in and upon the chest and belly of him, the said James Moore, three mortal wounds, each of the depth of six Inches, and of the breadth of one-quarter of an inch, of which'
“And the jurors aforesaid, upon their oaths aforesaid, do further say that the said Ike Spanish then and there unlawfully and feloniously, and of his malice aforethought, and from a premeditated design to effect the death of the said James Moore, was then and there present, aiding, abetting, helping, comforting, assisting and maintaining the said William Adams, the murder of him, the said James Moore, in manner and form aforesaid, to do and commit.
“And the jurors aforesaid, upon their oaths aforesaid, do further say that the said T. P. Bethea did then and there unlawfully, feloniously, and of his malice aforethought, and from a premeditated design to effect the death of him, the said James Moore, incite, move, aid, counsel, hire, abet, assist, procure and command the said William Adams, the murder of him, the said James Moore as aforesaid, in manner and form aforesaid to do and commit.
“And so the jurors aforesaid, upon their oaths aforesaid, do say that the said William Adams, Ike Spanish and T. P. Bethea, the said James Moore, then and there in manner aforesaid, and by the means aforesaid, unlawfully, feloniously and of their malice aforethought, and from a premeditated design to effect the death of him, the said James Moore, him, the said James Moore, then and there did kill and murder, against the peace and dignity of the State of Florida,
Adams and Spanish were in custody when the indict-met was presented in court, and so far as the record shows, Bethea has not been arrested.
On motion of the State a severance was granted and 'William Adams, the plaintiff in error, after arraignment and plea, was tried and convicted of murder in the first degree. Motions in arrest of judgment and for a new trial were overruled, and by judgment of the court the sentence of death was passed upon this accused. From this judgment a writ of error was taken to this court.
The first and second assignments of error call in question the sufficiency of the indictment, are in substance the same and will be considered together. Before arraignment and plea the plaintiff in error moved to quash the indictment, 1st. £ £ Because it alleges a premeditated design to effect the death of a human being without naming the deceased as the person whose death was intended to be effected through the premeditated design alleged;” 2nd. “ Because said indictment is argumentative and states a conclusion and does not allege in positive terms that the deceased was struck and penetrated by the means alleged to have caused his death;” 3rd. £tBecause said indictment is vague, indefinite and uncertain and calculated to embarrass the defendant in his defense.” The overruling of this motion is the first error assigned. After verdict a motion in arrest of judgment alleging substantially the
It is essentially necessary in an indictment for murder to set forth particularly the manner of the death and the means by which it was effected. The facts which constitute the offense must be stated with such
The action of the court in overruling the motion of defendant, Adams, to withdraw his plea of not guilty, and plead in abatement, is assigned as error. The indictment was presented in court on the 26th day of February, A. D. 1891, during a regular term of court, but the trial was not had until a special term of the
It is within the discretion of the Circuit Court to allow a plea of not gxxilty to be withdrawn for the purpose of pleading in abatement. This court has recognized this right in the case of Savage and James vs. State, 18 Fla., 909, and it is unnecessary for us to cite the numerous authorities sxxstaining the position. In
The refusal of the court to grant- a change of venue to the defendant, Adams, is assigned as error.
The accused, Adams, before the beginning of the trial at the special term, made a motion for a change of venue on the grounds that a fair and impartial trial could not be had in Columbia county by reason of extreme prejudice of the inhabitants of that county against him, and because he was odious to such inhabitants. In support of this motion the accused presented to the court his own affidavit, uncorroborated by the affidavit or sworn testimony of any other
The State made no counter showing, and on the motion and affidavit of the accused the court refused to change the venue. We have duly considered this application of the accused for a change of venue, and have reached the conclusion, on the showing made, the verity of the facts stated appearing only by the uncorroborated affidavit of the accused, that we cannot disturb the action of the court. It is true that the constitution guarantees to every person under a criminal prosecution a trial by an impartial jury, and by statute it is provided that when it shall appear to the satisfaction of the trial court by affidavit that a fair and impartial trial cannot be had in the county where the offense is committed, the court shall direct that the accused be tried in some other county where a fair and impartial trial can be had. It is said in the decisions that the principles which should guide the trial court in such matters are simple. If it be shown to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected the venue ought to be changed. Posey vs. State, 73 Ala., 490. To grant an accused less than this would deprive him of a right given, under our system, both by the constitution and statute. As has been expressed in the case of Seames vs. State, 84 Ala., 410: “These provisions have in view, not only the object of securing a just verdict, but a just
It is alleged for error that the court sustained the State’s objection to the question propounded to Mrs. Moore, the wife of the deceased.
Another ground of error is, that the court erred in permitting the witness, Hanks, to testify as to statements made to him by the accused.
It appears from the record that the witness, Hanks, was present when the accused was arrested, and heard him say where he was at the time Moore was shot. Hanks was not an officer, and no threats were made against the accused, or promises held out to him at the time of his statement. The court ruled that the statements of the'accused eís to his whereabouts at the time of the homicide could be proved by the State. In
It is assigned for error and contended here that the court erred in allowing Ike Spanish, an accomplice, and jointly indicted with the accused, Adams, to testify against him.
As has already been stated, Adams and Spanish were jointly indicted, the one as principal in the first degree, and the other as principal in the second degree, for the murder of James Moore. After a sever.anee, procured at the instance of the State, Spanish was tendered as a witness on the part of the prosecution against Adams, and was permitted to testify over liis objection. We do not understand that the objection goes to the extent that no accomplice can testify under any circumstances against his associate in crime, but that an accomplice jointly indicted, and as to whom the indictment has not been disposed of, cannot testify as a witness against his co-defendant, whether the trial be joint or seperate. It has been announced in several cases decided by this court that an acomplice is a competent witness against an accused on trial. Sumpter vs. State, 11 Fla., 247; Keech vs. State, 15 Fla., 591; Bacon vs. State, 22 Fla., 51; Tuberson vs. State, 26 Fla., 472, 7 South. Rep., 858. In Tubepson vs. State, supra, although it is said that an accomplice is a competent witness, and a conviction upon his testimony may be sustained, yet there was no such evidence in the case. In Sumpter vs. State, supra, the
The ground urged for her exclusion is that she is the wife of Ike Spanish, the person jointly indicted with the defendant, Adams. We have just seen that Ike is a competent witness. If he is competent, she is also competent, and there was no error in permitting her to testify. Wixon vs. People, 5 Parker’s Cr. Rep., 119; Wharton’s Cr. Ev., sec. 391.
Another assignment of error 'is, that the court permitted the map made by one, Brown, to be exhibited to the jury and put in evidence on the part of the State.
A map, plan or picture, whether made by the hand of man or photography, if verrified as a true representation of the subject about which testimony is offered, is admissible in evidence to assist the jury in understanding the case. They are frequently formally admitted in evidence, and in so far as they are shown to be correct, are proper for the consideration of the jury, not as independent testimony, but in connection with other evidence, to enable the jury to understand and apply, such evidence. In State vs. Lawlor, 28 Minn., 216, diagrams of the premises where a homicide was committed, made from actual measurements, and verified by the party who made them as correct, except that the position of certain chairs, tables, and movable objects in the house on the night of the homicide, was indicated thereon upon
AVe think the proposition of law stated in the first clause of this charge is proper ; that is, to the effect, that if the jury have a reasonable doubt as to whether the defendant was present at the scene of the homicide, he is entitled to the benefit of such doubt and should be acquitted. But we think that the subse
•In addition to the portions of the charge above referred to, the judge further instructed the jury on the subject of an alibi, that “when proof of an alibi is attempted and proven to the satisfaction of the jury, it is conclusive of the case. When it is attempted, and the proof to sustain it is not satisfactory, the failure to prove it satisfactorily is a circumstance unfavor
The judge further says in this portion of his charge that if the accused fails to prove satisfactorily to the jury his defense of alibi, it is a circumstance unfavorable to him. The jury should consider all the evidence, and they have a right to draw therefrom conclusions favorable or unfavorable to the accused, but it is not within the province of the court to do this for the jury. A further discussion of this phase of the charge will be found under the next assignment of error.
Again the court instructs the jury that “if there has been circumstances proven tending to show that the defendant was connected with the homicide, and the knowledge to explain such circumstances is plainly shown to have been in the possession of the defendant, and if you are satisfied from all the evidence that he has wilfully declined or intentionally omitted to explain such circumstances, then such omission is a fur
It will be noted that while the judge - informs the jury that they are the sole judges of all the evidence, he 'proceeds to tell them that if there has been proven circumstances tending to show that the accused was connected with the homicide, and the knowledge to explain such cirsumstances is in his possession, and that he has wilfully declined or intentionally omitted to do so, such omission is a further circumstance unfavorable to the accused. If the circumstances tend to show that the accused was connected with the homicide, he is required, under this instruction, to explain, or in default it is counted against him. It is also said that if he have the knowledge to explain under the circumstances, and fail to do so, it is unfavorable to him. The word “knowledge,” in the connection in which it is found, would seem to be used as synonymoxis with “ability.” A knowledge to explain would not be of much value to the accused, unless he was possessed of the ability to explain the circumstances. The objection, however, to this portion of the charge is, that the judge is not charging upon the law of the case, but is within the province of the jury. In Newberry vs. State, 26 Fla., 334, 8 South. Rep., 445, it was held that an instruction of the court to the jury in this language, “always remembering that evry evariance or contradiction is not of itself an indication of any design to evade the truth ou the part of those tes
In his motion for a new trial the accused excepted to the following portion of the charge to the jury, to wit: “As to whether the case at bar and the Coffee case, he himself being on trial, are parallel cases, and as to what extent the witness, Ike Spanish, may have been influenced to tell a lie on the defendant, Adams, and himself by reason of fear, or by hopes held out to him, you alone are the judges from all the evidence.” This is not all that the court charged in reference to the Coffee case. The other portion of the charge on this subject, and which immediately preceded the portion excepted to, is as follows : “The opinion of our Supreme Court, read and commented on to the court by the counsel in the case of Coffee vs. The State, 28 Fla., was delivered upon an appeal taken by Coffee himself, after he had been convicted of murder in the first degree on his own confession of guilt, extorted from him through fear of his life, with a rope around his neck, placed there by an excited crowd, and who made him promise to tell the same things the next day, and to stick to it in court, and which confessions were after-wards used against him on his trial, and which were admitted as evidence over the objection of his counsel, because his said confessions had been obtained by
A further exception to the charge of. the court is based upon the following portion, viz: “ Malice is implied from any deliberate, cool, injurious and unlawful act against another, which shows an abandoned and malignant heart, and if one person, without apparent provocation, wilfully and intentionally and unlawfully shoots another with a deadly weapon, although he had no previous malice or ill-will against the party slain, yet he is presumed to have had such malice at the moment of the shooting, and unless the evidence shows that he was acting from some innocent or proper motive, or that he was justified or excusable, such killing would be murder ; (it is a presumption of law that every sane man intends the natural and reasonable consequence of his own free and voluntary acts, and if a sane person wilfully and intentionally fires a load of buck-shot into the body of another person in close proximity to him, it is an inference of the law that he intends thereby to cause great bodily harm or death,, and unless such shot was fired under circumstances showing justification or excuse, then it is an inference of law, and the law presumes that it was' maliciously done), and if the evidence shows that such shot was
Prior to the enactment of the statute on the subject of homicide in 1868, the common law rule in reference to yuesumptions of malice from the act of killing a human being, obtained in this State. By this rule the offense of murder was established by proving the fact of killing, .and then it devolved upon the accused to show the facts and circumstances reducing the crime to a low'er degree, or showing that the killing was justifiable or excusable, unless such facts and circumstances aYpieared from the iwoofs on the part of the State. Holland vs. State, 12 Fla., 117; Gladden vs. State, 15 Fla., 623; Dixon vs. State, Ibid, 637. It was held in Dukes vs. State, 14 Fla., 499, that this common law rule was essentially changed by the statute, and that this legal presumption of malice arising from the fact of killing no longer existed. The interpretation placed upon the statute by the previous decisions of this court has wrought a decided change in the law of felonious homicide, and one necessary to be observed in laying down the law on this subject. Dukes vs. State, supra,
The bill of exceptions shows that an objection was made by the counsel for the accused to the competency of Ike Spanish as a witness for the State, and pending the discussion of this question before the court, the jury was sent from the court room. The officers who had the custody of the defendant, Adams, through mistake took him also from the court room and carried him to jail. Counsel for the defendant then proceeded to discuss before the court the competency of Ike Spanish as a witness, and had proceeded about ten minutes with the discussion in the absence of the prisoner, when his presence was missed. The State Attorney called the attention of the court to the absence of the prisoner, and thereupon the court requested the counsel for defendant to suspend his argument, which he did, at the same time excepting to the removal of the prisoner from the court room without his consent, and his being deprived of a right guaranteed by the Constitution. On the return of the prisoner to to the courtroom the judge requested his attorney, in order to save any difficulty that may arise by reason of the inadvertance, to commence anew his argument, and that the court would hear his views and authorities anew. Defendant by his counsel declined to say anything further, but insisted that his objection to taking the accused from the courtroom be noted. Without any
The last ground of the motion for a new trial is, “that the jury received whiskey during the progress of the trial.”
The brother of the accused made an affidavit stating that he learned from the baliffithat he had taken jugs of whiskey from the express office for several members of the jury, and that whiskey was conveyed to them from time to time during the progress of the trial. The
There are some other assignments of error in the record, and one involving a grave question of misconduct on the part of the bailiff in charge of the jury, and one of the jurors. As the case has to go back on other grounds for a new trial, and these assignments of error present questions that are not likely to arise again, we will not prolong this opinion by discussing them. In a case like this -where human life is involved, the jury should not be influenced by any improper considerations, and no avenue of improper approach should be left open. We feel that we can rely upon
For the errors herein pointed out, the judgment in this case must be reversed and a new trial awarded.