22 Fla. 51 | Fla. | 1886
delivered the opinion of the court:
In the month of March, 1885, at the Spring Term of the Circuit Court held in’ and for the county of Manatee, Edmond P. Bacon, Louis L. Cato, Thomas Dryman and Adam W. Hunter, were indicted for the murder of one Harrison T. Riley, and Leonard E. Andrews, Jason L. Alford, Charles B. Willard, Joseph C. Anderson and Alfred B. Bidwell were indicted as accessories before the fact. At a special term of the court held on the fourteeth day of July, in the same year, such proceedings were had that there was severance of the defendants, and the court proceeded to try the defendants, Edmond P. Bacon, Leonard E. Andrews, Alfred B. Bidwell and Adam W. Hunter. The jury rendered the following verdict: “ We, the jury, find Edmond
The counsel for the defendants, Bacon, Andrews and Bidwell, then moved the court to set aside the verdict and grant a new trial, and in arrest of judgment for the following reasons:
First. Because the verdict is contrary to law.
Second. Because the verdict is contrary to the evidence.
Third. Because the verdict is contrary to the charge of the court.
Fourth. Because the jury failed to give the defendants the benefit of every reasonable doubt.
Fifth. Because in the case of Alfred B. Bidwell the defence can now use the testimony for the defendants of Adam W. Hunter, who was jointly indicted and tried with defendants, and who was acquitted, which is material for the said A. B. Bidwell’s defence, as per affidavit filed. The affidavit of Adam W. Hunter, so filed in support of the fifth ground of such motion, was as follows:
“ State of Florida, 1
Manatee County, j
“ Before me, Clerk of the Circuit Court in and for said county, personally came Adam W. Hunter, who being duly sworn deposes as follows: That on Saturday, June 28, 1884, he was clerking for Alfred B. Bidwell, and in charge of his store, at Sara Sota; that affiant took Alfred B. Bidwell’s No. 12, breech-loading, double-barrel shotgun and gave it to Charles B. Willard, and affiant is informed that Willard gave said gun to Joseph C. Anderson; the said
“ A. W. Hunter.”
“ Sworn to and subscribed before me this 18th day of July, A. D. 1885.
“ R. S. Griffith, Clerk.
“ By Jackson, Deputy Clerk.”
The motion for new trial was denied by the court, and the defendants brought their writ of error.
The errors assigned are: First, that the court erred in overruling the motion of the defendants for a new trial; and, Second, in overruling the motion in arrest of judgment. The motion in arrest of judgment was properly overruled; it was based upon the same grounds upon which the motion for a new trial was made. No defect, was alleged in the indictment, or in any subsequent pleading. Such motions arise from intrinsic causes appearing upon the face of the record, and is not a proper remedy for a wrong verdict. McClerkin vs. State, 20 Fla., 879 ; Sedgwick vs. Dawkins, 18 Fla., 335 ; Hyer vs. Vaughn, 18 Fla., 647.
The only question left for us to consider is, did the court err in overruling the motion for a new trial, and to decide this it will be necessary, at some length, to examine the testimony taken on the trial.
M. A. Riley, son of the deceased, Harrison T. Riley, testified his father left home in the direction to go to the postoffice on Monday morning, about half past seven or eight o’clock. The horse on which he rode came home about one o’clock of that day. The horse came home shot through the neck with two shot. He went to see what was the matter, and found his father lying dead on his face on £the road. This was on the last day of June, 1884.
Theodore W. Redd then testified, corroborating the evidence of the last witness, in reference to finding the shells and wads, and says: “ I discovered where it looked as if two persons had been standing in the bushes, and where shot had cut through the palmettoes, and I found also some
W. A. Bartholomew testified that he, as coroner, held the inquest, on the body of Riley, on the first of July, 1884. The jury made an examination of the ground surrounding the body the first thing; some of them discovered in a bunch of palmetto and bushes where at least two persons had been concealed. Between the positions that those persons occupied and the body, there were shot holes in the palmettoes in two different localities. There were also palmettoes the stems of which had been bent over and nearly broken, and also twigs of bushes. On the ground between the concealment and the dead body they picked up a couple of shells, No. 12, of a breech-loading shot gun; one of those shells had been cut in two. The primer or cap of that shell was undischarged; the cap of the other had been exploded, and had indications of having had powder burned in it at least once. They picked up a number of felt wads. There were two sizes. There was a piece of cork also picked up. There was a piece of blank writing paper picked up with’a piece of rotten string attached to it. It had what appeared to be blood on one side of it. “ The body was next examined. The body was lying with the head to the west, the face downwards, the left hand and the arm under the body, the right arm partially extended. The body was resting on the knees, the lower part; they were drawn up, the knees were. They turned
Council F. Brown testified in substance that he knew all
Miles A. Brown testified that he was present at the meeting on Saturday night before Riley was killed; that Dr. Andrews, Jason Alford, C. E. Brown, E. P. Bacon, Louis-Cato, Thomas Dryman, Dr. Hunter, Mr. Bidwell, Mr.
He testified that the meeting at which the detail was made was Saturday night before the Monday morning when Riley was killed. “ There were Judges of this organization. The Judges were Mr. Bid well and Mr. Andrews. They both presided at the meeting that night. By presiding, I mean they both were there. At this particular night Dr. Andrews was chairman. Dr. Andrews said at the meeting that night ‘ there was work to do,’ and Jason Alford said, £ well, what is it doctor ?’ Dr. L. F. Andrews said, £ old Riley has got to die,’ and Mr. Bid well said that’s business.” In his further testimony as to the detail he corroborates the testimony of Council F. Brown. On his cross-examination, he said: “ I did not go to the meeting of the detail. I said all the time I was sick. It was enough to make any man sick. I was taken sick on Saturday night going home from the meeting. I was sick until Sunday night. On Monday I got on my pony and went three miles, in an opposite direction to where Riley was killed, to old man Blackburn’s. I suppose it made me feel better that I was relieved from that, though I was in danger of my life.”
Louis L. Cato was then sworn, and after being instructed by the court that he could refuse to testify to anything that would criminate himself, and that what he said freely and
Thos. L. Dryman, after being duly instructed by the court, as in the ease of the witness, Cato, testified: “ I knew Harrison T. Riley ; I knew Edmond P. Bacon, Adam W. Hunter, Alfred B. Bidwell and Leonard E. Andrews. I was present ata meeting held in one of the Alford houses the Saturday night previous to the Monday Riley was killed. That was a meeting of an organization known as the Sara Sota Yigilance Committee, styled S. S. Y. C. The members were, first,'Jason Alford, Dr. Andrews, (identifies him,) Alfred B. Bidwell, John M. Tippett, Erank Jones, Dr. Hayden, Edmond P. Bacon, Joseph C. Anderson, John Eletcher, James Eletcher, Lucien Belk, Thomas Dryman, Bob Smallwood, Council E. Brown, Miles Brown, John Trowel, -Bartholomew-—I don’t know him by his given name; that’s all I can remember; Dr. Hunter was a member at
This is the substance of the evidence on the part of the State against the defendants. The defence then introduced one witness to prove an alibi on the part of the defendant,
Edmond P. Bacon, one of the defendants on trial, then made his statement on oath, the substance of which was that he- belonged to a secret society, of which Dr. Andrews, Louis Cato, John Fletcher, Alford, Charles Willard, George Tyler, Tom Dryman, the two Brown boys, old man Tippett, and old man Fletcher were members; they had a meeting at the burnt place, and they got to talking something about old Tip. Riley; •some opposed it, and some wanted to do it ; they adopted some by-laws, and oaths; “ I cannot give them.” He was present at the meeting on the Saturday night before Riley was killed. : Alford made a detail of seven men to kill Riley ; they were Louis Cato, .Thos. Dryman, Coot Brown, Miles Brown, Dr. Hunter, and Alford, himself, and Bacon; Bacon and Dryman went to the place, and met there Lieutenant Cato; he picked out the place and cut
L. E. Andrews, one of the defendants, was then sworn, and made his statement, in substance as follows: “Jason Alford, in the month of May, 1884, told him, Andrews, that he was getting up a social club ; Andrews asked him,, what do you mean ? Alford said, there is a great deal of slander in this section of the country, and I think we can get up a club that will use the influence of good men to do away with it, and make peace and harmony among the citizens; subsequently, and about two weeks afterwards,, Andrews met Alford and, in renewing the conversation, Andrews said he wanted to know the names of the parties in the club. Alford mentioned J. E. Tippett, Parson Redd,, Mr. Elmer, Mr. Rawls, old man Tatum, John Tatum, Jesse Knight’s boys, Mr. Murphy, and Mr. Wilson; we met Mr. Tippett; I asked Mr. Tippett about the club ; he said it was all right, that it was for the best interest of the citizens and peace and harmony. That decided me, because Mr. Tippett was deacon in the church.” He joined the organi
Adam W. Hunter, another of the defendants, was then
Alfred B. Bidwell, one of the defendants, after being sworn, made the following statement in substance: “ In April, 1884, Alford asked him if he would not like to join a- political and social organization ; he said it was for political purposes, and to see if they could not have a better feeling in that neighborhood among neighbors; the next week he went to Alford’s house, and found there Mr. Alford,
The defendants’ attorneys caused a commission to be issued, and the evidence of certain persons, who resided in the city of Buffalo, and State of New York, was taken, as to the reputation and general character of the defendant, Alfred B. Bidwell. This evidence was then read to the jury, the substance of which is as follows :
Charles Beckwith says that he is one of the Judges of the Superior Court of Buffalo; “I made the acquaintance of Alfred B. Bidwell in the year 1853 ; he resided in Buffalo, N. Y., until about eight years ago, when he went to Florida ; I was intimately acquainted with him ; his residence was in Buffalo until he left for Florida, seven or eight years ago; I knew his general reputation in the city of Buffalo, and in the community in which he lived, as a peaceable, honorable and law-abiding man and citizen; that general reputation was good during all the time of my acquaintance; I was well informed as to his business affairs and relations, the reputation he bore among his fellow-citizens, and his social standing in the community where he lived, and during all that time, his reputation as a peaceable, honorable, law-abiding man, was above reproach and heyond question ; he had been married a number of years prior to his leaving Buffalo, but it was understood that he - was divorced from his wife ; at leasts they separated some time prior to Bidwell’s leaving Buffalo ; she went off, as it was reported, to California.”
James M. Smith says he resides in the city of Buffalo,
John C. Graves, Clerk of the Superior Court of Buffalo, says he knew Bidwell in Buffalo, about eighteen years; Bidwell resided there until he removed to Florida in the latter part of the year 1876 ; he knew the general reputation of Bidwell, and it was an excellent reputation as a peaceful, honorable and law-abiding citizen ; it was understood in the community that he and his wife had separated, and that she had gone to California.
Joseph E. Barnard, Comptroller of the city of Buffalo, says he knew Bidwell; became acquainted with him in 1866 or 1867, and knew him until he went to Florida; knew his general reputation in the community where he lived; his reputation was first-class in every respect; “everything I knew about him indicated that he was held in high respect.”
A commission was also duly granted and issued to take testimony in the State of Iowa, as to the reputation and general character of the defendant, Leonard F. Andrews. This evidence read to the jury is substantially as follows:
L. O. Runig: Knew Leonard F. Andrews in Lewis for about five years ; part of the time he lived in Lewis, Iowa, and part of the time within five miles of Lewis; “I knew him intimately; he moved from there about three years since; I knew his general reputation, and it was good, as good as any other citizen ; he was a law-abiding citizen.”
R. W. Macomber says: “ I knew Leonard F. Andrews in
M. J. Davis says: “I knew Leonard E. Andrews ; he resided in Cass county, Iowa, about five years; I think he left about the year 1880 ; was very well acquainted with him; I knew his general reputation in the community where he lived; it was good.”
Oliver Mills: Knew Andrews for about six years in Cass county, Iowa; “ I was quite intimately acquainted with him; I knew his general reputation; it was excellent, none better.”
J. S. Reshel says: “ I knew Leonard F. Andrews while living in Lewis and vicinity, in Cass county, Iowa, for a period of five or six years, from the year 1876 until he moved to Florida; he moved to Florida in the fall of 1881; I knew him well and intimately; his general reputation in the community was that of a peaceable, respected and law-abiding man.”
George Elsey says: “ I knew Andrews; he resided in Cass county, Iowa, about six years; I think he moved away in 1881; I was intimately acquainted with him ; I knew his general reputation when he resided here; he had the general reputation of being a quiet, peaceable and orderly citizen.”
The court then charged the jury, a copy of which charge is embodied in the record, and to which charge no exceptions were taken by either party. Upon the subject of an alibi, the court charged as follows: “ A defendant has a right to prove by competent evidence that he was not present and could not have committed the crime. If, from
The rule, as laid down by Mr. Greenleaf in his work on evidence, is as follows: “ The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. It has sometimes been said that they ought not to believe him, unless his testimony is corroborated by other evidence; and, without doubt, great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law; it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice, without any confirmation of his statement.” Greenleaf on Evidence, §380 ; State vs. Litchfield, 58 Me., 267; People vs. Cook, 5 Parker’s Crim. R., 351; Wixson vs. The People, 5 Parker’s Crim. R., 119.
In the case of Rex vs. Jones, 2 Camp., 131, Lord Ellenborough said : “No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice only. Judges, in their discretion, will advise a jury not to believe an accomplice, unless he is confirmed, or only in as far as he is confirmed ; but if he is believed, his testimony is unquestionably sufficient to establish the facts which he deposes. It is allowed that he is a competent
In the case of Jordaine vs. Lashbrooke, 7 Durnf. & East, 609, Grose, J., in commenting upon the law, as laid down by the Twelve Judges, in The King vs. Atwood, supra, says : “ This was not new law, nor founded upon a new principle, for in 1 Hale, 303, 304, 305, there are different instances of convictions on the evidence of accomplices.” Rex vs. Hastings, 7 Car. & Payne, 153 ; Regina vs. Stubbs, 33 Eng. Law and Equity, 551.
Phillips, in his work on evidence, says : “ The evidence of accomplices has been at all times admitted, from a principle of public policy and from necessity, as it is scarcely possible to detect conspiracies, and many of the worst crimes, without their information. In the case of Charnock, who was tried for high treason in the time of William III, Lord Holt said, in his address to the jury, ‘conspiracies are deeds of darkness as well as of wickedness, the discovery whereof can properly come only from the conspirators themselves, and the evidence of accomplices has always been allowed good proof in all ages, and they are most proper witnesses, for otherwise it is hardly possible if not altogether impossible, to have a full proof of such
In Commonwealth vs. Bosworth, 22 Pick., 397, Morton, J., delivering the opinion of the court, says: “It is competent for a jury to convict on the testimony of an accomplice alone. The principle which allows the evidence to go to the jury necessarily involves in it a power in them to believe it. The defendant has a right to have the jury decide upon the, evidence which may be offered against him, and their duty will require of them to return a verdict of guilty or not guilty, according to the conviction which that evidence shall produce in their minds.” The court then cites 2 Haw., P. C., 46, §135 ; Hale’s P. C., 304, 305 ; Roscoe’s Crim. Ev., 119 ; 1 Phill. Ev., 32; 2 Starkie Ev., 18, 20.
In the case of Sumpter vs. The State of Florida, 11 Fla., 247, this question was settled by this court. In the opinion, Judge Douglass says: “ The rule of evidence laid down by Lawrence, Judge, in the case of Jordaine vs. Lashbrooke, 7 Term Rep., 601, is that “all persons are admissible witnesses who have the use of their reason, and such religious belief as to feel the obligation of an oath, and who have not been convicted of any infamous crime, and are not influenced by interest.” It is not enough that a person may have committed am infamous crime, and that he may have confessed it. These facts may seem to destroy his credibility before a court and jury and may render his testimony of little avail in the estima
In Indiana it is held that “ a jury may convict upon the testimony alone of an accomplice.” Dawley vs. The State, 4 Ind., 128 ; Agnes vs. The State, 88 Ind., 275.
In Illinois the same rule prevails. In the case of Collins vs. The State, 98 Ill., 584, the court say in substance that an accomplice is a competent witness, and a conviction may be had upon his uncorroborated testimony if it satisfies the jury beyond a reasonable doubt; “but courts, in their discretion, may advise a jury not to believe an accomplice unless he is confirmed, or only in so far as he is confirmed. It is a matter of discretion with the court to so advise, rather than a rule of law.”
In the case of The State vs. Russell, 33 La., Ann., 135, the court say: “ On the subject of the testimony of accomplices, the authorities, to our mind, not only authorize its introduction, but justify conviction by the jury on such testimony, although it may not be corroborated by other.” State vs. Prudhomme, 25 La. Ann., 522.
The charge of the court was full and explicit upon this subject, and the jury had the whole case fairly submitted to them.
The defendants, Bidwell and Andrews, by the testimony of witnesses who had formerly known them respectively in the States of New York and Iowa, proved their characters to have been good during the time they resided there. Bidwell produced the evidence of four witnesses, who all
The jury had before them also the evidence of George N. Shepard, introduced to prove an alibi on the part of the defendant, Bidwell. They had the opportunity of seeing the witness and hearing his evidence upon the stand. He swears that he was with Bidwell from in the morning until ten o’clock at night, of the night when it was said Riley was sentenced, and that Bidwell was not away from his
The counsel for Bidwell claims that a new trial should be granted, because Adam W. Hunter, who had been jointly indicted and tried with the other defendants, had been acquitted by the jury and could now be used as a witness to prove that he, Hunter, took Bidwell’s Ho. 12 breech-loading double-barrel shot guu and gave it to Charles B. Willard, and that he was informed that Willard gave it to Joseph C. Anderson; that the gun was so taken without the knowledge or consent of Bidwell. Hunter made such an affidavit, which was used upon the motion for a new trial.
The rule found in the text-books is, that “ a new trial will not be granted on behalf of a defendant convicted in a criminal case because a co-defendant tried at the same time and acquitted is a material witness for the defendant.” Wharton’s Am. Crim. Law, §3192 ; Graham & Waterman on New Trials, 1107.