82 Fla. 181 | Fla. | 1921
Lead Opinion
Burnard Whitten was convicted of murder in the first degree for the homicide of his wife and capital punishment was adjudged. A writ of error was taken.
The accused was shown to be under the age of twenty-one years. The provisions of Chapter 6221, Acts of 1911, were not complied with as to giving notice to parents or guardians of minors who are charged with crime. Without deciding whether the failure to give thé notice to parents or guardians, prior to the trial, as required by the' statute, was rendered immaterial by Chapter 7364, Acts', of 1917,
Eeversed for a new trial.
Dissenting Opinion
Dissenting — Plaintiff in error, referred to herein as defendant, was indicted upon a charge of murder in the first degree. The person alleged to have been murdered was his wife. He was charged with having shot her, inflicting a mortal wound from the effect of which she im
Under the first assignment it is contended that there was error in not submitting to the jury the question of whether an alleged confession of defendant was voluntary.
The confession, evidence of which was offered and objected to, was made by the defendant to the sheriff of the county in his office in the courthouse in the presence of several other persons soon after defendant was taken into custody. The sheriff was called as a witness by the State to give evidence of this confession. The jury was withdrawn while inquiry was made upon the question of whether the confession was voluntarily made. Upon this point, after direct examination by the State Attorney in which the witness testified that no reward was held out and no threats were made in order to induce defendant to make a statement, the following evidence was given by the witness upon cross examination: “Q. Sheriff, what was the object and purpose of removing him from the jail to your private office? A. My object was to get a statement from him. I hadn’t interviewed him since the killing up until then. I felt it was my duty to interview him and get a statement from him. Q. Did you at that time tell him that he was under no obligation to make a statement if he didn’t want to? A. I told him not in those words. I.told him that — -if you wish I will tell you the conversation. Q. All right, sir. A. I says, Mr. Whitten, probably you realize the seriousness of what you are accused with. I says, I would like to have you make a statement to mé if you feel like it but before making this statement I want to warn you that
Unless a confession was freely and voluntarily made it is not admissible against a person charged with crime, but it is the province of the court and not of the jury to determine in the first instance whether such confession Hvas voluntary. If the Court decides that the confession was voluntary, it admits the evidence. If it decides that the confession was not voluntary it excludes the evidence and it does not go to the jury. Bates v. State, 78 Fla. 672, 84 South. Rep. 373; Stiner v. State, 78 Fla. 647, 83 South. Rep. 565; Sims v. State, 59 Fla. 38, 52 South. Rep. 198; 1 R. C. L. p. 577.
In Bates v. State, supra, the Court said: ‘ ‘ The question
Where it appears prima facie that a confession was voluntary the burden then shifts to the defendant to show that it was in fact involuntary, and a confession made by an accused while in the custody of an officer is not for that reason inadmissible if it appears that the confession was voluntarily made. McDonald v. State, 70 Fla. 250, 70 South. Rep. 24; Sims v. State, supra; McNish et al. v. State, 47 Fla. 69, 36 South. Rep. 176; Green v. State, 40 Fla. 474, 24 South. Rep. 537. In this case, after the trial judge had satisfied himself from an investigation made in the absence of the jury that the evidence was voluntary and therefore competent, no evidence was produced by defendant which might have tended to show that the confession was obtained by improper methods for the purpose of affecting its credibility or rendering it incompetent.
Error is predicated upon the action of the Court in allowing part of the testimony to be taken in the absence of the jury and in making the ruling in the presence of the jury that the confession was voluntary. From the discussion of the preceding assignment it is apparent that there is no merit in this contention. This court has said that the investigation upon the question of whether a confession was freely and voluntarily made should be in the absence of the jury. And it cannot be urged as error that
It is also assigned as error that the Court failed to caution the defendant that he was not compelled to give testimony that was self incriminating.
When the State had offered its evidence and rested, the defendant was sworn as a witness in his own behalf. He was examined by counsel representing him and was asked to tell the jury all about the alleged homicide. He made a statement in which he admitted killing his wife. When asked if he had anything further to say he said no, except to beg the mercy of the court. There was no cross examination.
Where a defendant in a criminal prosecution voluntarily offers himself as a witness to testify in his own behalf he thereby puts himself on the same f ooting as any other witness and after voluntarily giving incriminating evidence it cannot be said that he has been compelled to be a witness against himself. Brown et al. v. State, 80 Fla. 741, 86 South. Rep. 574; Daly v. State, 67 Fla. 1, 64 South. Rep. 358; Clinton et al. v. State, 53 Fla. 98, 43 South. Rep. 312; Maloy v. State, 52 Fla. 101, 41 South. Rep. 791; Pittman v. State, 51 Fla. 94, 41 South. Rep. 385; Wallace v. State, 41 Fla. 547, 26 South. Rep. 713; Copeland v. State, 41 Fla. 320, 26 South. Rep. 319; Milton v. State, 40 Fla. 251, 24 South. Rep. 60; Wood v. State, 31 Fla. 221, 12 South. Rep. 539. Neither can error be predicated upon the court’s failure to caution a defendant when he is testifying in his
It is also urggd that the Court erred in putting defendant on trial or pronouncing judgment against him without giving notice to his parents or guardian or other relative as the law prescribed, the defendant then not being married and being a minor. This contention seems to be based upon the theory that such notice is necessary under the provisions of Section 3926a, Florida Compiled Laws, 1914. By Chapter 7364, Acts of 1917, Laws of Florida, the disabilities of non-age of all male minors who were then married, who had been married or who may thereafter become married were removed, and it would seem that this is a sufficient answer to this contention, it appearing from the record that defendant was married, the charge upon which he was convicted being the murder of his wife. But if the statute just referred to should be limited in its application and the language should be construed as a removal of civil disabilities only of minors upon their marriage, the failure to notify the parent or guardian or other relative in this case, assuming that no such notice was given, the record being silent on the point, is not sufficient to require a reversal since it is not apparent that error, if there was any, has resulted in a miscarriage of justice.
Upon the same ground and for the same reason it cannot be well said that there was harmful error requiring a reversal of the case in admitting evidence of the confession of defendant, since, as we have seen, he admitted the killing while testifying in his own behalf on the trial of the case.
An examination of the record in this case discloses no error of procedure requiring a reversal of the judgment. It is true that the defendant himself says that his mind is weak. This, however, is not corroborated by any other witness and he seems to have had sufficient mental capacity to deliberately plan and stealthily execute the murder which he admits he committed and to successfully evade for several days 'thereafter the officer of the law charged with the duty of apprehending him. With this admission of guilt in the record there would seem to be little demand for a discussion of questions of procedure. The law and not the court fixes the penalty for the crime. This Court may reverse the judgment of conviction because questions propounded to defendant by his own counsel do not seem to be properly phrased or because justice may seem to require a new trial, but there is not, in my opinion, reversible error appearing in the record and I therefore dissent.