Christian v. StateChristian v. State
Defendant was tried by jury upon indictment for first degree murder. He was sentenced to life imprisonment upon being found guilty with recommendation of mercy. He appeals.
We have measured appellant‘s trial and conviction with grave and profound care against the now established rule of law. We find it fundamentally defective with the error being of such magnitude as to command a new trial.
The state‘s proofs indicate that defendant killed his female victim when and because she resisted or refused his efforts to have her perform an act of fellation. The defendant denied that he was present when the victim was killed. Enough for facts, other than to color it as a heinous and unnecessary crime with the evidence being sufficient, if that were our only issue, to support a finding that defendant killed his companion. Our problem in gross is the determination of the degree of the offense and thereby the determination of the sentence.
More specifically, as we plan to outline, our pivotal concern has to do with the procedure and substance whereby the felony murder concept became a central issue of the trial (evidence, arguments and jury charge) with this court now to find that the felony statute involved, “crime against nature,” has been judicially voided leaving no felony on which to bottom the felony murder theory.
The reversal here is dictated by the decision in Franklin v. State, Fla. 1971, 257 So.2d 21. In short, it provided that
The consequence of the Franklin decision is to strip the statutes of felonies based upon such sexual acts. Without attempting
Murder in the first degree is statutorily defined as “... killing of a human being, when perpetrated from a premeditated design to effect the death of the person ... or when committed in the perpetration of or in the attempt to perpetrate... [the] abominable and detestable crime against nature....”
“800.01 Crime against nature; punishment. — Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be punished by imprisonment in the state prison not exceeding twenty years.”
Now as to the trial court happenings, the indictment charged that James Edward Christian did “from a premeditated design to effect the death of CARRIE LOU BARBER O‘DONNELL, kill and murder the said CARRIE LOU BARBER O‘DONNELL, in said county, by striking her with a blunt instrument, a further description of which is to the Grand Jury unknown.”
In the opening statement, the state commented:
(By Mr. Eagan, State Attorney)
“... [A]nd the evidence will show that this homicide started out as a sexual assault, not in the ordinary sense in that you will find from the evidence that her clothing was intact, but he had her in that barn on her back, sitting on top of her, trying to get her to take his penis into her mouth. When she refused, he became mad and he struck her and he beat her.”
The evidence supported the extracted portions of the opening statement. The jury was instructed, among other things, as follows:
“Murder in the first degree is the unlawful killing of a human being when ... committed in the perpetration of or in the attempt to perpetrate ... abominable and detestable crime against nature... .
“The killing of a human being in committing or in attempting to commit ... abominable and detestable crime against nature ... is murder in the first degree even though there is no premeditated design or intent to kill.
“The crime of abominable and detestable crime against nature is defined as follows: The offense of sodomy or buggery. Sodomy is defined as a carnal copulation by human beings with each other against nature.”
The state in its closing argument stated:
“Murder in the first degree is also established when a murder is committed in the commission or in the attempt to commit the abominable and detestable crime against nature which the Judge will define for you.
“That girl was flat on her back when she was found there. Her upper clothing was pulled up in the area of her neck. There was a photograph of that. Her slacks are intact. Her underpants were intact. The whole side of her head was caved in, but there is no blood on her slacks. The reason for that is that this man was sitting on her, astride her, protecting those lower extremities with his body, trying to force his penis into
her mouth, and when she refused, he struck her, and whether he knocked her unconscious or whether he killed her then is really irrelevant, because he thereafter went out, tried to get that car out of the septic tank and came back in that barn bringing to your mind, a lug wrench.”
And now what does all of this mean? Repetitively, murder in the first degree is defined in the alternative. It is an unlawful killing when perpetrated from a premeditated design. Alternatively, the felony murder concept is available and premeditation is not required as in those cases where the unlawful killing is committed in the perpetration or attempt to perpetrate the abominable and detestable crime against nature (and other stated felonies not here necessary to list).
As we analyze the evidence it is evident, in light of the verdict, that the jury necessarily either found defendant guilty of killing with premeditation or while involved in the attempt to commit the sex felony. We do not decide, as it is unnecessary for our decision, as to whether the premeditation was established by the necessary quantum of proof. We do say with emphasis that such evidence was exceedingly scant and that it is highly more likely, in view of the testimony and emphasis found in the record, that the jury traveled the felony murder route not requiring premeditation in finding defendant guilty of first degree murder.
And what is the effect of the Franklin case in light of the above announced hypotheses? If the felony murder theory is not available, and it is not under the law and facts of this case, the jury, if it finds no premeditation, as it is and would be entitled to do, could find defendant guilty of a lesser degree of the homicide and thus entitled to a sentence less than life imprisonment. We feel that the essential and manifest requirement of law indicates that defendant should be re-tried without intrusion of the now illegal and void felony found in
As earlier remarked, the Franklin decision was to be prospective and not retroactive. It was decided after trial and judgment and before appeal in the instant case. This precise matter was considered in Morris v. State, Fla.App. 1972, 261 So.2d 563, an appeal of a conviction under
“The court further held that its decision is not retroactive but is prospective only. This raises the question of whether that case is controlling here since it was handed down after the trial herein but before this appeal has been decided. Since the matter held unconstitutional is not a procedural one, ... but is rather a substantive matter upon which the entire case is predicated, we hold that the supreme court‘s decision in Franklin and Joyce, supra, is controlling here. That is to say, if a procedure is declared unconstitutional, and the decision so declaring is to be given prospective effect only, that decision only affects trials conducted thereafter. When, however, an entire proceeding is substantively bottomed on a statute which is declared unconstitutional the cause is determined at the appellate level as the law exists at the time of the appeal and not at the time of the institution of the proceedings in the trial court. (This emphasis ours.) And this is so notwithstanding that the statute involved has theretofore been held valid and/or its
validity was not questioned in the trial court.”
Then in Blackmon v. State, Fla.App. 1972, 262 So.2d 264, a conviction of
“It is our interpretation of the judgment rendered by the Supreme Court of Florida in Franklin v. State, supra, that the nonretroactive effect of that judgment holding unconstitutional the statute involved herein applies only to judgments of conviction and sentence which have become final and are no longer open to appellate review. The prospective application of the court‘s ruling includes not only cases which might arise in the future involving charges for violation of the statute but would apply with equal force to such cases where the judgment and conviction had not become final because of the pendency of an appeal in a court of competent jurisdiction.”
Finally, is it of moment that defendant did not challenge the constitutionality of
Somewhat by way of postscript we ask ourselves if this court, consistent with its judicial obligation, could somehow term the error here outlined as harmless under
“It is an inherent and indispensable requisite of a fair and impartial trial under the protective powers of our Federal and State Constitutions as contained in the due process of law clauses that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence. Such protection afforded an accused cannot be treated with impunity under the guise of `harmless error‘. See Henderson v. State, 155 Fla. 487, 20 So.2d 649; Motley v. State, 155 Fla. 545, 20 So.2d 798; Croft v. State, 117 Fla. 832, 158 So. 454 and others.” (Emphasis added.)
Materially erroneous charges will be considered harmful error if the jury was or could have been misled by them. 32 Fla.Jur., Trial, § 163; Walker v. Parry, 1906, 51 Fla. 344, 40 So. 69. To further illustrate, in Lane v. State, 1902, 44 Fla. 105, 32 So. 896, the jury was erroneously instructed on self defense. In reversing, the Supreme Court commented:
“It is the rule in this court that in determining the correctness of charges they must be considered as a whole, but where a special charge in itself announces a patently erroneous proposition of law, it must affirmatively and clearly appear that the presumptive harm caused thereby has been entirely removed, or the judgment should be reversed.”
It is so apparent that it will not be labored more. The act of instructing the
It is our conclusion, on the bases here set forth, that defendant was improperly and illegally tried on the felony murder theory. We think he is entitled to a new trial free from the force and influence of the unconstitutional statute.
All other points raised by defendant on appeal have been examined and considered in detail with the help of counsels’ advice and arguments. None of the additional points have merit. They either lack substance or were not preserved for appellate review, all as specifically urged by the state.
We reverse1 and remand with instructions to afford defendant-appellant a new trial consistent with the views herein expressed.
Reversed and remanded.
OWEN, J., concurs.
MAGER, J., dissents, with opinion.
MAGER, Judge (dissenting):
I must respectfully dissent for it is my view that quite apart from the now illegal and void felony found in F.S.
As the majority opinion ably points out, murder in the first degree is defined in the disjunctive, i.e., an unlawful killing when perpetrated from a premeditated design or when done in the commission or attempted commission of certain named felonies. There are, therefore, two separate and distinct theories upon which murder in the first degree can be sustained: (1) that the murder was committed in the course of certain felonies, i.e., the abominable and detestable crime against nature or (2) that the murder was premeditated. Where the evidence supports a first degree conviction on either theory such conviction will stand. See Hill v. State, Fla. 1961, 133 So.2d 68; Larry v. State, Fla. 1958, 104 So.2d 352; and Blake v. State, Fla. 1963, 156 So.2d 511. It is my opinion that the evidence in this record supports a first degree murder conviction based upon premeditation as charged in the grand jury indictment; the circumstances were ample from which a jury could have found premeditation, without regard to the felony-murder theory.
The decisions in Morris v. State, supra, and Blackmon v. State, supra, cited by the majority, are not completely dispositive of this appeal. In Morris and Blackmon the courts were concerned with convictions under F.S.
The evidence in the record was sufficient to support a conviction upon the alternate theory of premeditation and accordingly I would affirm.