31 Fla. 176 | Fla. | 1893
The plaintiff in error, Buck Hall, at the Spring term, A. D. 1892, of the Circuit Court for Jackson county, was jointly indicted with Sebe Espy, Choice Adams and Henry Simmons for the murder of John R. Ely, Jr., on the 9th day of December, 1891.
The indictment contains two counts, the first charging all four of the defendants with the murder of the deceased; the second charging the defendants Hall and Espy with the commission of the murder, and charging Adams and Simmons as being present, counselling,
The trial resulted on June 17th, 1892, in the following verdict: “We the jury find the defendant Buck Hall guilty.”
Upon this verdict, after the denial of a motion for a new trial, the defendant was sentenced to death, and from such sentence comes here by writ of error.
The 13 th ground of the defendant’s motion fora new trial was as follows :
‘ ‘ Because the jury in this case found defendan t guilty under an indictment for murder, and they failed, as required by Section 2383 of the Revised Statutes, to ascertain by their verdict the degree of unlawful homicide of which he was guilty.”
The 8th assignment of error is the overruling of the motion for new trial; and the 9th assignment of error is the rendition of the judgment or sentence by the court on the verdict of the jury which fails to ascertain the degree of unlawful homicide of which the defendant was guilty.
Incorporated in our Revised Statutes as Section 2383 thereof is the following provision: “When the jury find the defendant guilty under an indictment for mur
This provision of law, that seems for many years to have been embodied in the criminal codes of many of the other states, is an entirely new one with us, appearing on our statute book for the first time as part of the lately adopted Revised Statutes. It went into effect and became the law of this State, as before stated, on the very day that the plaintiff in error was put upon his trial, and therefore became and was applicable to the proceedings in that trial. Because of the gravity ■of the case, and of the fact that the question here raised comes before us now for the first time in this State, we have given it the most thorough research and consideration; and wTe have been unable to find a single decision of any state having a similar statutory provision with reference to verdicts in murder cases, that does not hold, that a verdict, such as the one rendered in this case, in the presence of such statutory requirement, is a nullity, and that no judgment or sentence ■can legally be pronounced thereon. So far as we have been able to ascertain, Pennsylvania as early as 1794 was the first state to adopt such a provision, and did ■so in the following language:’ “The jury before whom any person shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree.” In com-
The state of Maryland in 1809 adopted the Pennsylvania statute in the following language: “The jury before whom any person is indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree; but if such person be convicted
In the case of McCauly vs. United States, decided in 1846 by the Territorial Supreme Court of Iowa, 1 Morris, (Iowa), 486, the defendant, on g trial for murder, after all the testimony on the part of the prosecution had been adduced before the court and jury, withdrew his plea of not guilty and pleaded guilty to the indictment, and was thereupon sentenced to be hung. The court, per Mason, Chief Justice, in construing a similar statute to ours, says: “Nothing appears on the record showing that witnesses wrnre examined by the court after he had pleaded guilty, or that the court in any manner decided whether the offense were murder or manslaughter as contemplated by the statute. Had the trial before the jury proceeded, and a general verdict of guilty alone been rendered, it would have been clearly defective. The general plea of guilty stands in the place of such a'general verdict, and was so intended by the Legislature. The law seems to regard manslaughter as a species of murder. On an indictment for the higher offense, a conviction may take place for the lower; neither a general verdict or a general plea of guilty is permitted where murder alone is charged in the indictment, but an enquiry and decision as to the more precise nature of the offense are rendered necessary. That enquiry and decision should appear of record.” Because of the failure of the judge to exam
In 1846 the state of Connecticut adopted the Pennsylvania law in almost the exact language of the Maryland statute quoted from above. And in the case of The State of Connecticut vs. Dowd, 19 Conn., 388, the Supreme Court of that state, in commenting on it, say: “That in all cases, the degree of criminality must be determined as a question of fact; and that a general conviction upon any indictment, without such determination, would not authorize a court to impose the greater punishment.”
In 1835 the state of Ohio adopted the same provision of law substantially as it is contained in our own Revised Statutes (Section 39, Chapter 35, Swan’s Statutes of Ohio, Compilation of 1841.) The Supreme Court of that state, in Dick vs. State, 3 Ohio St., 89, where the indictment contained three counts each charging the crime of murder in the first degree, and where the verdict of the jury was: “ That the defendant is guilty in manner and form as he stands charged in said indicfmentf
In Alabama prior to 1849 the same statutory provision was adopted with this difference, that in case of confession of guilt a jury had to be empanelled to ascertain the degree of the crime. The Supreme Court of that state, in the case of Cobia vs. State, 16 Ala.
Besides the states from whose decisions we have already quoted, the same, or substantially the same statutory provision, prevails in the states of Arkansas, California, Kansas, Michigan, Missouri, Nevada, Tennessee and Texas, and the Supreme Courts of all those-states, without a dissentient voice, have all passed upon this question in one and the same way, as will be found upon an examination of the folio wing cases: Thompson vs. State, 26 Ark., 323; Allen vs. State, Id., 333; People vs. Marquis, 15 Cal., 38; People vs. Campbell, 40 Cal., 129; State vs. Reddick, 7 Kan., 143; Tully vs. People, 6 Mich., 273; McGee vs. State, 8 Mo., 495; State vs. Upton, 20 Mo., 397; State vs. Rover, 10 Nev., 388; Kirby vs. State, 7 Yerg. (Tenn.), 258; McPherson vs. State, 9 Yerg. (Tenn.), 279; Isbell vs. State, 31 Tex., 138.
Under our statute the crime of murder is divided into three degrees, the lines of demarkation between them being dependent upon the manner and intent with which they are committed, and this of course must be deduced from the facts and circumstances of each particular case. Under our statute also we have the crime of manslaughter that may be perpetrated, as defined by our statute, in divers ways, dependent wholly upon the facts and circumstances of each particular case. It is also well settled here that under an indictment charg
What has been said disposes of the case, but as our conclusions will result in another trial of the cause, we will proceed to notice such of the other assignments -of error as we think essential from the facts disclosed in the record.
The second error assigned is the admission by the court of declarations "and transactions that passed between other parties apparently implicated in the murder of the deceased made prior to the killing, while the defendant was not present. That there was a conspiracy to kill the deceased on the part of some of the parties present at the killing, there is strong evidence in the record to support, but whether the defendant was a party to such conspiracy we do not undertake to say, though there is some evidence in the record that tends to implicate him therein. The rule governing the question raised by this objection is thus clearly stated in 1 G-reenleaf’s Evidence, Section 111: “Every one who does enter into a common purpo'se or design” {referring to conspiracy) ‘ ‘is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any of the others, in furtherance of such common design. Sometimes for th e sake of convenience the acts or declarations of one are admitted in evidence before sufficient 2~)roof is given of the conspiracy, the
There is nothing in any of the other assignments of error that we deem it necessary to consider, except, that in the charge given upon “reasonable doubt,” we think, upon another trial, that the following words
Because of the defect in the verdict of the jury, the judgment of the court below is reversed and a new trial is ordered.