73 Fla. 115 | Fla. | 1917
An indictment was returned against Robert Hopps and Bertha Thomás, charging the former with the crime of murder in the first degree and the latter with the crime of accessory before the fact. A severance was^ granted and Robert Hopps was first put upon trial, found guilty of murder in the first degree with a recommendation to the mercy of the court and sentenced to confinement at hard labor in the State prison for the period.of his natural life. On the following day after the conclusion of the trial of Robert Hopps, Bertha Thomas was placed on trial, found guilty of being an “accessory before the fact to the commission of manslaughter” and sentenced to confinement at hard labor in the State prison for the period of twenty years. Bertha seeks relief here by a writ of error and has assigned five errors. We shall follow the course pursued by the coun.sel for the respective parties and discuss the assignments in the order in which they are argued before us.
The first assignment so argued before us is the second, which is that “The court erred in overruling defendant’s motion in arrest of judgment,” which motion is as follows :
“Now comes, by her attorneys, the defendant, Bertha Thomas, who was indicted for being an accessory beforé the fact to murder in the first degree, and who was convicted of being an accessory before the fact to manslaughter, and move's the court to arrest judgment in said cause.
“First. Because the verdict of the jury is contrary to the law.
“Second. Because the verdict is contrary to the evidence.
The only ground of this motion which.is argued is the third. It is earnestly contended that, as the principal, Robert Hopps, had been convicted of the crime of murder in the first degree, Bertha Thomas, who was charged in the same indictment with the crime of being an accessory before the fact, could legally have been convicted only of the particular degree of crime of which her principal had been convicted, which was murder in the first degree. If this contention is well founded, then the motion in arrest of judgment should have been granted, in accordance with the principles announced in Harris v. State, 53 Fla. 37, 43 South. Rep. 311. It is, therefore, incumbent upon us to determine whether,or not the contention is well founded. It seems to be conceded by the counsel for the State, and, we think, correctly, upon the authority of Ex-parte Bowen, 25 Fla. 214, 6 South. Rep. 65, that Bertha Thomas was not indicted and convicted of substantive felony, as might have been done under Section 3179 of the General Statutes of 1906, whiph is as follows: “Whoever counsels, hires or otherwise procures a felony to be committed, may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction, or may be indicted and convicted of substantive felony, whether the principal has or has not been convicted or is or is not amenable to justice; and in the last mentioned case may be punished in the same manner as.if convicted of being an accessory before the fact.” Also, see the discussion in Bowen v. State, 25 Fla. 645, 6 South. Rep. 459; Keech v. State, 15 Fla. 591; Montague v. State, 17 Fla. 662. Haying been indicted and'tried for the crime of being-an accessory before the
If there is no other statute which controls, it would seem that this contention of the defendant would have to be upheld. Let us look further into the matter. It is conceded, as we held in Mathis v. State, 45 Fla. 46, 34 South. Rep. 287, that “There can be an accessory before the fact in the crime of murder in the third degree, and
It is contended on behalf of the State that Section 4007 of the General Statutes of 1906 governs, which statute is as follows: “In all criminal prosecutions hereafter begun in this State, if the defendant be found guilty of an offense lesser in degree, but included within the offense charged in the indictment or information, such verdict shall not be set aside by the court, upon the ground that such verdict is contrary to the evidence, if the evidence produced in such case would have supported a finding, or if such court would have sustained a verdict of guilty of the greater offense.”
We think that this contention-has been successfully met'by the defendant. The ground of the motion in arrest of judgment which we are considering is not that the verdict rendered “is contrary to the evidence,” for which the statute makes provision, but is in effect that such verdict could not have been legally returned in the case, therefore the court was not authorized or warranted in sentencing the defendant upon such, verdict. As we have frequently held, a motion in arrest of judgment would not lie .upon the ground that the evidence is not sufficient to support the verdict. See the discussion in Harris v. State, 53 Fla. 37, 43 South. Rep. 311, and the prior decisions of this court therein cited.
It is also contended on behalf of the State that Section 3991 of the General Statutes of 1.906 controls,
The next assignment which is urged before us is based upon the overrulifig of the motion for a new trial, which motion is as follows:
“Now comes the defendant, Bertha Thomas, heretofore convicted of being an accessory before the fact of manslaughter, and moves for a new trial for the following reasons, to-wit:
“First. The court erred in not sustaining the motion of the defendant to strike the testimony of Robert Hopps
“Second. Because the verdict is contrary to the law.
“Third. Because the verdict is contrary to the evidence.
“Fourth. Because the verdict is contrary to the law and the evidence.”
We shall follow our established practice and consider only such grounds of this motion as are argued, before us. Smith v. State, 65 Fla. 56, 61 South. Rep. 120. It is contended that the verdict rendered is contrary both to the law and the evidence. It is undoubtedly true, as is urged by the defendant, that, in order to warrant the.conviction of one as an accessory the conviction of the person charged as principal must be shown. There is no dispute upon this point. We think that the transcript of the record satisfactorily establishes the fact that the prior conviction of the principal was shown upon the trial of the defendant, therefore there is no occasion for our discussion of this point. As to the further contention of the defendant that the evidence adduced is insufficient to sustain the verdict, it is sufficient to say that we are of the opinion that the evidence is amply sufficient. We refrain from setting out or discussing the evidence for the reason that no useful purpose could be accomplished by so doing. As we have repeatedly held:
“An appellate court should not grant a new trial upon the ground of the insufficiency of- the evidence to sustain a verdict of guilty affirmed by the trial court if there is some substantial evidence of all the facts legally essential to support the verdict, and the whole evidence is such that the verdict may fairly have been found on it.
“Where there is evidence from which all the elements of the crime may legally have been found or inferred,
“A verdict will not be set aside by an appellate court where the propriety of the verdict depends not upon the lack of evidence, but upon the credibility of weight of conflicting competent testimony.” Smith v. State, 66 Fla. 135, 63 South. Rep. 138.
Next in the order of the argument are the first and fourth assignments, which are argued together and are as follows :
“The court erred in its refusal to strike the testimony of the witness, Robert Hopps, on the ground that his admission showed that he was incapable of understanding the nature of an oath.”
“The court erred iA refusing to strike the testimony of the witness Mary Johnson, on the ground that her incompetency to qualify as a witness appeared by her admissions that she did not understand the nature of an oath.”
Robert Hopps and Mary Johnson were two of the principal witnesses introduced on behalf of the State. There is no occasion to set forth their testimony. The bill of exceptions discloses the following as to the cross-examination of Robert Hopps:
“On cross examination, this witness admitted that he did not know what would become of him if he swore to a lie in>court, or whether he would be punished or not, and did not know what would happen to him if he told a lie and died, or where he would go.
“Whereupon the defendant, by counsel, moved to strike the testimony of Robert Hopps on the ground that his incompetency as a witness appeared from these ad
While the following proceedings are shown as to the cross-examination of Mary Johnson:
“The defendant, by counsel, then asked the witness if she knew what would happen to her or whether she would be punished or not if she told a lie in court and she said ‘No/ and if she knew .-what would happen to her if she told a lie and died, and she said ‘No,’ and thereupon pioved that the testimony of this witness be taken from the consideration of the jury on the ground that her incompetency to qualify as a witness appeared, but the court denied the motion and exception was noted.”
As we held in Clinton v. State, 53 Fla. 98, 43 South. Rep. 312, 12 Ann. Cas. 150, “The common law rule has been changed in this State, and belief neither in a Supreme Being nor in divine punishment is a requisite to the competency of a witness-.” Also see Section 1503 of the General Statutes of 1906, which is copied in the opinion, and the authorities therein cited. The defendant cites and relies upon 1 Wigmore’s Evidence, Sections 495 and 506, and Ibid. Vol. 3, section 1823, which we have carefully read. We do not feel called upon to criticize or discuss the statements contained in these paragraphs. Assuming their correctness, it still remains for us to determine whether they support the defendant in her contention. It is well settled that it is the province and duty of the trial court to determine the competency of a witness. Clinton v. State, supra, and x Wigmore’s Evidence, section 487. We think that it would have been well if the court had proceeded to have the competency of these two witnesses further inquired into, but,, even so, we are not prepared to declare that it committed reversible error in overruling the motions to strike out the testimony of
We now reach the fifth and last assignment, which is as follows: “The court erred in sustaining plaintiff’s demurrer to defendant, Bertha Thomas’s plea in abatement to the indictment.”
The plea in abatement of the defendant to which this assignment refers is quite lengthy and we shall not set it out. The defendant in her brief states the purpose and effect of such plea as follows, which would seem to be substantially correct: “The plea in abatement (Record, page 4), sets up the fact that the court at the preceding term drew from the jury box the names of thirty-six persons to serve as jurors at tire ensuing term; that at the Spring Term of 1916, thirty-one of these persons were duly summoned by the Sheriff, and appeared in court; that the names of these thirty-one persons were placed in a box by the Hon. E. C. Love, Judge of the Court, and eighteen persons were drawn from this number to make up a grand jury; that after the said eighteen persons had been drawn from the box, that it was ascertained that
There is no occasion to set forth the demurrer interposed thereto.
As we held in Young v. State, 63 Fla. 55, 58 South. Rep. 188, wherein we followed prior decisions of this court: Pleas in abatement setting up mere irregularities in the selection of jurors should be drawn with the great; est accuracy and precision, and must be certain to every intent. They must leave nothing to be supplied by intendment, and no supposable special answer unobviated. When it affirmatively appears that no possible injury could accrue to a defendant by an irregularity not amounting to a substantial departure from the requirements of law in the selection and empanelling of jurors, an objection thereto should not avail. Also see Cannon v. State, 62 Fla. 20, 57 South. Rep. 240. We would also refer to Sections 1575, 3852 and 1582 of the General Statutes of 1906. We are clear that no error has been made to appear in this ruling, therefore this assignment must be held to have failed.
Browne, C. J., and Taylor, Whitfield and Ellis, JJ., concur.
