35 Fla. 737 | Fla. | 1895
In December, 1891, Francis Joseph Packwood, with-his sister-in-law, Miss Adelaide Bruce, and his four-year-old son, lived on the Hillsboro river in Volusia county, Florida, about half way between the towns of' New Smyrna and Oak Hill. Mr. Packwood’s place was somewhat isolated, being immediately on the river and about one mile east of the public road between the towns mentioned, with a road extending from the public road to the place on the river. On Thursday preceding the 12th day of December, 1891, Mr. Pack-wood left his place to visit Orange county, and, as was-his custom on remaining from home over nights, he-induced a Mrs. Hatch, living a few miles distant, to-stay with his family until his return. During his absence in Orange county, and on the 12th day of December, 1891, the dead bodies of Miss Bruce, the little boy, Mrs. Hatch and her little son, who had accompanied her to the Packwood place, were found in the-house, under circumstances about which there is no-dispute, indicating that they had been brutally murdered. The plaintiffs in error were convicted of murder in the first degree — one of them (Marion Clinton)being recommended to the mercy of the court — under an indictment found at the fall term, A. D. 1893, of the Yolusia Circuit Court, charging them with the-murder of Adelaide Bruce.
The indictment contains six counts; the first one-alleging that Irving Jenkins effected the death of Adelaide Bruce by means of a leaden bullet discharged by him from a certain pistol, and that the other defend
On application made, by the accused, the case was transferred to Lake county, and upon a trial in that county the accused were convicted upon the fourth count in the indictment. Motions in arrest of judgment and for new trial were made and overruled, and the accused sentenced — Jenkins and McRae to be hung, and Clinton to confinement in the penitentiary for life.
An assault was made on the indictment by plea in abatement on the ground that it was found by a grand jury not drawn according to law, in that said jurors were not drawn from any box as required by Chapter 4122. laws of 1893, nor were thirty persons summoned as jurors for said term from whom eighteen were se
The objections urged in the trial court, and the assignments of error made here, based upon the alleged disqualification of certain petit jurors, are not argued, and we will devote no space to them.
Counsel representing the State announced during the taking of testimony that it had become of importance to the State that what the accused testified in the grand jury room should be placed before the jury, and it was explained that the State attorney himself took down the testimony of the witnesses before the grand jury. The State attorney being sworn, was asked to look at a paper and state in whose hand writing it was, and said in reply that the portions to the ninth line on the third page, and beginning from the bottom of the sixth page on, was in Ms hand writing, and that it purported to be the testimony of W. A. McRae before the grand jury at the Spring term, 1893. He further testified that he was present, examined McRae and took down the testimony mentioned as being in his hand writing, and that a member of the grand jury took down a portion of it, but the witness’ recollection was that he con-
The State attorney further testifying, was asked if that (referring to the paper) was the testimony of McRae at the Spring term, 1893, of the Circuit Court of Yolusia county, and stated that it was. He also stated “this is substantially the testimony as taken down by me and that clerk; it is the testimony which is substantially as given by Mr. McRae taken down by me at the time, and the clerk; it is not verbatim.” The paper was admitted in evidence, and the witness read it to the jury as the statement of McRae before the grand jury at the Spring term, 1893, of the Yolusia Circuit Court, and the defendants excepted.
A statement of the testimony of Marion Clinton before the grand jury at the same term was also admitted in evidence under similar circumstances, over the objections of the defendants. Clinton was not at the time charged with the offense, or under arrest, and was cautioned by the State attorney before testifying, as
It is insisted here on behalf of the accused that the court erred in permitting the written statements to be-introduced as evidence against the defendants, and the grounds of this insistance may be arranged under three heads: First, the introduction of the written, statements in evidence was an invasion of the secrecy of the grand jury not authorized by law; second, the statements made by the accused before the grand jury were not voluntary, and should have been excluded on this account; and, third, the statements themselves were not admissible as evidence, and at most could, only be used for the purpose of refreshing the memory
It is contended under the first objection that the only cases in which a grand juror can be required, or should be permitted, by the court'to disclose the testimony of witnesses before that body are those mentioned in section 2814 (the one last mentioned), and that as the accused never testified before the court, and there was no complainst against them for perjury, the statements should not have been admitted. The cases of Tindle vs. Nichols, 20 Mo. 326; Beam vs. Link, 27 Mo. 261; and Commonwealth vs. Green, 126 Penn. St. 531, 17 Atl. Rep. 878, 12 Am. St. Rep. 894, are cited in support of this contention. The fifteenth section of a Missouri statute was the same as section 2814
Section 2807 provides that the State attorney shall, when required by the grand jury, attend that body for the purpose of examining witnesses in its presence- and to give it advice upon legal matters, and whenever it would be proper for a grand juror to testify as to the statements of witnesses before the grand jury the State attorney can likewise testify as to such matters. There is no difference in principle between the-two in such matters. State v. Van Buskirk, 59 Ind. 384; Knott v. Sargent, 125 Mass. 95.
The second objection is, that the testimony of the accused before the grand jury was not voluntary. In Newton vs. State, 21 Fla. 53, it was said that ‘‘the-general rule is, that what a party says in relation to-the offense is admissible in evidence against him, whether on oath or not; provided, always, he is not at-such time charged with the commission of the crime, and such statement is voluntary.” The view expressed in Hendrickson vs. People, 10 N. Y. 13, was also quoted to the effect that ‘ ‘in all cases, as well before coroners’ inquests as on the trial of issues in court, when the witness is not under arrest, or is not before the officer on a charge of crime, he stands on the same footing as other witnesses. He may refuse to answer, and his answers are to be deemed voluntary, unless he is compelled to answer after having declined to do so. In the latter case only will they be deemed eomijulsory and excluded.” The question in the Newton case arose on the admission of an affidavit made by the accused before a coroner. According to ancient nisi prius decisions in England it seems to have been held that testimony given under oath in any judicial inves
The next objection is, that the statements reduced to writing in the manner shown were not competent or proper evidence against the accused, and at most could only be used as memoranda for refreshing the memory of the witness in case it became necessary for that purpose. The bill of exceptions shows that the written statements of evidence of the accused before t-he-grand jury as made by the State attorney were themselves admitted as evidence, and the original papers sent up for inspection, under the order of the circuit judge, show by endorsements that the veil of secrecy was removed and the papers themselves offered in evidence on the examination of the State attorney. From what has been said it- follows that it was competent for the State to prove, on the trial what the accused testified to before the grand jury, and that a member of that body, or the State attorney, could testify as to such matters within their knowledge. We can see no objection to the State attorney or a member of the-grand jury testifying from recollection as any other-witness as to what the accused said before the grand jury, but we have been unable to find any authority to sanction the view that the written statements of evidence made by the State attorney in the ex parte examination of witnesses by him, before the grand jury, are evidence of themselves of what the. witnesses there testified. We presume that the written statements, of evidence were admitted in this case on the ground.
Mrs. Hatch was one of the four persons found dead in the Packwood house, in a room adjoining the one in which the dead body of Miss Bruce was found. The husband of Mrs. Hatch was asked, on examination as a witness for the State, whether or not his wife possessed a red flannel underskirt, and stated that she did. Being further asked if it was like the one exhibited to him, replied that he could not state; that he did not know that he ever saw the skirt, his wife said that she was making one a few days before she went away, and that he could not identify the skirt; that he could not recall ever having seen it — may have done so, but could not recollect of doing so. He further stated that a Mrs. Berry left a piece of red flannel at his house as a present while they were away, and that he told his wife to make it up for herself; that his wife made itintoskirts for herself; she told him that she had, or rather for herself and sister; one she sent to her sister, and the other she said she was going to keep. He also stated
William Baxter testified for the State that he had conversations with defendant Clinton regarding the Packwood murder, after the murder was discovered. Witness did not remember dates of the conversations, but they were had at various places. Witness referred to a conversation at Olsen’s and at the house of witness. The last conversation witness remembered was on the 12th day of February, 1898, something over one year after the discovery of the dead bodies at the Packwood place. Witness was asked if Clinton said anything with regard to McRae in the conversation, and answered that he did not at that conversation, referring, as shown, by the connection, to the last conversation mentioned. Witness stated that Clinton ref erred to McRae in one of the conversations when he, McRae, was not present. Objection was made to what Clinton stated McRae said in the latter’s absence, and the court overruled the objection and permitted, the witness to detail such statement. Witness testified that he and Clinton were talking in regard to the murder, and Clinton said McRae told him (witness) that he (McRae)
The rule as to the admission in evidence of the acts- and declarations of a co-conspirator in reference to the common design affecting his associates is thus stated by Mr. Greenleaf, viz: “A foundation must first be-laid by proof sufficient in the opinion of the judge to-establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus-shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in. contemplation of law, the act and declaration of them all, and is, therefore, original evidence against each of them. It makes no difference at what time any one entered into the conspiracy: Everyone who does enter into a common purpose or design is generally deemed,.
In our judgment the court erred in permitting the witness Baxter to testify as to what Clinton said McRae told him in reference to seeing Miss Bruce blow out the light. McRae was not present, and, as it appears from the record, the statement was made after
There is another exception to the admission of evidence which, in our judgment, should have been sustained by the court. It appears that for two or three-months in 1892 the defendant Jenkins was confined in the jail of Duval county, in the custody of the sheriff of that county, on a charge of selling liquors in violation of the United States statutes. Prior to that time-Jenkins had been arrested under a charge for the murder of which he now stands convicted, but had been discharged, before his incarceration in' the Duval county jail on the complaint of violating the laws of the United States. The sheriff of Duval county had received information that Jenkins probably knew material facts in reference to the Packwood tragedy, and had conversed with him in jail several times on that subject. The State put in evidence the statements of Jenkins to the sheriff of Duval county in reference to* the murders at the Packwood place, and in connection with the evidence of such statements the sheriff was asked if he knew of Jenkins paying any money, or giving an order for any money, to any lawyer‘or person while he was confined in jail. lie stated that an-attorney, giving name, went to the jail while witness was there and told him he would like to have him witness an order, and to get him a pen and ink; that the-attorney wrote the order on a piece of paper, and said-to witness he would like him to witness the order Jenkins was to sign on Dr. McRae for fifty dollars. The-order was written in the jail, signed by Jenkins in presence of witness and witnessed by him. The witness further stated that he did not recollect whether
It appears further from the evidence that one Isaiah Adams, who was confined in the Duval county jail with Jenkins, was examined by the State in reference to statements made by Jenkins in jail touching the murders at the Packwood place, and, in that connection, stated that he, witness, wrote a letter for Jenkins to DrMcRae for money. He further stated that Jenkins told him “to say in the letter that they wanted him to swear that Mr. McRae and Clinton were connected with that murder, and he would not do anything of the kind.” The letter after being sealed and delivered to Jenkins was passed-out to a trusty girl, also an inmate of the jail, and witness never saw it after it was handed to the girl. Witness knew Dr. McRae personally, and the letter was directed to Sanford.
The defendants objected to the testimony of the sheriff in reference to giving the order on Dr. McRae on the ground that it was irrelevant and immaterial evidence, and insisted that it had nothing to do with the case. The judge stated that it was difficult to tell,
It is competent to introduce any and all evidence that is material and relevant, and that tends to prove the guilt or innocence of the accused. In cases of circumstantial evidence, every fact from which the jury may legitimately deduce guilt or innocence is proper to be submitted to them, and although the relevancy of any fact, when standing alone, may not be apparent, yet, when taken in connection with any other fact, or all the other facts, properly admitted, its relevancy is made to appear, it should go to the jury for their consideration. This rule thus broadly stated should not, however, in cases of purely circumstantial evidence, any more than in others, be carried to the extent of infringing upon another rule, that all evidence should be confined to the question in issue, and tend to prove some essential fact involved in the issue in the case. The view expressed in State vs. Meader, 54 Vt. 126,
It is further insisted that all the testimony of Brow-' ard as to the statements of Jenkins should have been excluded from the consideration of the jury. Had proper exceptions been taken to this testimony, on the ground that such statements were not shown to-have been voluntarily made to the witness, a majority of the court are inclined to the view that the testimony should have been excluded, but as exceptions, on the-ground stated, were not properly made of record, further discussion of this objection will not be indulged, in here.
Other objections to the admissibility of evidence insisted on here need not be considered. To the extent permitted by the court, we find nothing objected to by the accused and insisted on here to which they can justly complain.
The court charged the jury at the instance of the State as follows, viz: “That in cases of circumstantial evidence it is not necessary that the proof shall be conclusive; that it is sufficient if the jury believe from all the facts and circumstances of the case that the accused are guilty, and that they have no reasonable doubt in their minds of this fact. If the jury think that the facts in this case are all consistent with the supposition that the prisoners are guilty, and can not reconcile the circumstances produced in evidence with any other supposition than that of their guilt, it is their duty to find them guilty. All that can be required is not absolute and positive proof, but such proof as convinces them that the crime has been made out against the accused.” Objections are made to portions of this charge. The first one is to the following portion: “If the jury think that the facts in this case are all consistent with the supposition that the prisoners are guilty, and can not reconcile the circumstances produced in evidence with any other supposition than that of their guilt, it
At the request of the State the court further charged the jury that “in cases of this kind the conclusion to which the jury are conducted is that degree of certainty that they would come to in their own grave and important concerns, and that is the degree of certainty which the law requires, and which will j ustify them in returning a verdict of guilt from all the facts and circumstances laid before them. That the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of their guilt.” This charge distinctly directs the jury that the degree of certainty which the law requires and which will justify them in finding a verdict of guilty on circumstantial evidence is that to which they would arrive in their own grave and important concerns. This charge is wrong, and lays down an improper standard for the guidance of juries in arriving at conclusions from the evidence in criminal cases.. The subject-matter of this charge was thoroughly considered in the case of Lovett vs. State, 30 Fla. 142, 11 South. Rep. 550, and we do not deem it necessary here to go into any extended discussion of the cases bearing on the point. There are -cases sustaining the view that the reasonable doubt which the jury must, entertain in order to convict, means that their minds must be so thoroughly convinced that they would act upon the conviction as they
We do not deem it necessary to refer to but one other charge excepted to and discussed by counsel for plaintiffs in error, and that is the third charge given at the instance of the State. It is not improper for the-court, when deemed necessary to do so, to tell the jury that the fact that unfortunate cases have occurred where innocent persons have been convicted upon circumstantial evidence, should not enter into their consideration of the evidence before them. So far as what is here stated is embodied in the charge referred to it is not objectionable, but the other features of the charge-should, in our opinion, be omitted.
Counsel for plaintiffs in error insist that the court erred in permitting argument of counsel for the State to go to the extent that it did. Some of the language-used by counsel for the State, and found in the bill of exceptions, does not appear to have been excepted to at the time the argument was made. The comments, of counsel in arguing a case before a j ury are controll
So far as we can see there was nothing improper in counsel taking up a pistol that had been put in evidence, and stating that it had been identified as the pistol of one of the defendants. There was testimony tending to prove such fact. Nor was there any impropriety in counsel, during his argument, handing the pistol to the jury to be examined. The pistol had been put in evidence before the jury and testimony introduced as to its condition. The jury could properly examine the pistol to see its condition, and it was not improper for counsel to ask them to do so.
The other language used by counsel, and found in the record, does not appear to have been even objected to. and we will not refer to it.
After deliberation, the jury returned into court and announced that they had agreed upon a verdict, and handed to the clerk a paper signed by the jurors as follows, viz: “We, the jury, find the defendants guilty as charged, but recommend Marion Clinton to the mercy of the court.” The court declined to receive the return ¿s a verdict, and made certain statements to the jury in reference to their verdict. Counsel excepted to what the court said to the jury, and insist that the province of the jury was invaded. As the judgment must be reversed on other grounds, we do npt deem it necessary to specially consider the exceptions on this point, further than to call attention to some decisions bearing on it. We have held that a finding like the one referred to above in cases of homicide is under our statute a nullity, and no judgment or sentence can be pronounced upon it. Hall vs. State, 31 Fla. 176, 12 South. Rep. 449; Lovett vs. State, 31 Fla. 164, 12 South. Rep. 452; Murphy vs. State, 31 Fla. 166, 12 South. Rep.
When a jury returns such a finding as the one stated in this case, the case is still in. their hands, and their duty in the premises remains undischarged. The court can not consider such a finding as being a verdict of murder in any degree, a.nd can not, of course, then any more than at any other time intimate to the jury what their verdict should be.
The judgment of the court below is reversed and a new trial awarded.