40 Fla. 191 | Fla. | 1898
The plaintiff in error was convicted of murder in the first degree at the Fall term, 1897, of the Circuit Court of Hamilton county, and from the death sentence imposed upon him sued out this writ of error. The indictment charged “that Jake Blue, Israel Green, Abe Dixon, Will Murphy, Dave Mitchell, Gilbert George and Boykin Brown, late of said county, on the 24th day of July, A. D. 1896, at and in the county and State aforesaid, with force and arms, and with a deadly weapon, to-wit: a pistol, which said pistol was then and there loaded and charged with gunpowder and leaden bullets, and which the said Jake Blue then and there had and held in one of his hands, in and upon one G. M. Fletcher, unlawfully -of their malice aforethought, and from a premeditated design to effect the death of the said G. M. Fletcher, did make an assault, and the said Jake Blue did then and there unlawfully, feloniously of his malice aforethought, and from a premeditated design to effect the death of the said G. M. Fletcher, shoot off and discharge the pistol aforesaid, so loaded and charged as aforesaid, at, towards, against and upon the said G. M.
I. It is insisted that the court erred in overruling defendant’s challenge of a proposed juror for cause. It is unnecessary for us to consider whether this ruling was or was not erroneous, because the record shows that when his challenge for cause was disallowed the defendant peremptorily challenged the proposed juror, and it does not show that defendant objected to any other juror tendered him, or that his peremptory challenges
II. The court drew from the jury box fifty names as a special venire from which to supply deficiencies in the regular panel in selecting a jury to try this case. When the regular panel was exhausted, the name of J. S. Green, being first .on the special venire, was called. This proposed juror stated that he was a member of the grand jury empanelled at the Fall term of the court; that he knew of no other J. S. Green in the county; that there was no other J. S. Green in the county. The defendant thereupon moved the court to quash the special .venire upon the ground that it was improperly and illegally drawn, “because there was only one J. S. Green
III. The defendant objected to the testimony of M. H. James, a State witness, detailing certain inculpatory statements made to him by the defendant. The witness was a deputy sheriff, and the statements were made by defendant while in prison awaiting trial under this indictment. The witness testified that the statements were freely and voluntarily made; that no improper influences were exerted to induce them, and there is in the record not a syllable of evidence contradicting his testimony in this respect. Indeed the defendant, though a witness, did not deny making the statements attributed to him, nor intimate that they were improperly obtained ;but, on the contrary, testified to the same matters substantially as were claimed by James to have been admitted to him. The defendant’s objection to the testimony of this witness was that defendant’s confessions were inadmissible, because the State had not shown that they were voluntarily made, which as we have stated, is not borne out by the record, and because the defendant at the time was in prison, and made the confessions to a deputy sheriff. The law does not exclude confessions made to an officer, even though the party making them be at the time in prison. The fact that the deffehdant was at the time in prison, or under arrest, or that .the confession was made to an officer, may be considered by the court in determining whether the confession was free and voluntary, or produced by duress, hope of reward, or other improper influence; but if found to be otherwise admissible, it should not be excluded for these reasons alone. Holland v. State, 39 Fla. 178, 22
IV. The defendant requested the court to charge the jury as follows: “Jake Blue, being charged of doing the shooting that killed young Fletcher, and he Jake Blue, having heretofore been convicted of murder in the second degree, you can not convict the prisoner of a higher offense than murder in the second degree, if you should convict him at all.” The court properly refused this charge, for several reasons: First, there was no evidence before the jury that Jake Blue had been convicted of murder in the second degree, or of any other offense under this indictment; the defendant was tried alone, and there was no evidence before the jury that any other defendant embraced in the indictment had been tried or convicted; second,- the indictment in this case charged each and all of the defendants with murder in the first degree. Jake Blue was charged as principal of the first degree, and the defendant and- five others as principals of the second degree in this crime. 1 Bishop’s New Criminal Law, §648. Although the indictment charged that Blue fired the fatal shot, the defendant could be properly convicted upon proof that he fired it, or that it was fired by either of the- other defendants while he was present aiding and abetting the act, provided of course the homicide amounted to murder in the first degree. Bryan v. State, 19 Fla. 864; Albritton v. State, 32 Fla. 358, 13 South. Rep. 955. And the acquittal or conviction of Blue or any other defendant, or their conviction of a lesser offense than that of murder in the first degree, would not operate as a bar to defendant’s conviction for murder in the first degree, if the evidence was sufficient to show that he was guilty of that crime. Montague v. State, 17 Fla. 662; 1 Bishop’s New Crim. Law, §800; 2 Bishop’s Crim. Proc. §3.
VI. The court committed no error in overruling the motion for a new trial. .The evidence was sufficient to support the verdict, and the judgment of the court below is affirmed.