86 Fla. 111 | Fla. | 1923
Lead Opinion
This cause is here for a second time. (Whitten v. State, 82 Fla. 181, 89 South. Rep. 421.) On a former writ of error the judgment of conviction of murder in the first degree was reversed and upon a second trial there was a verdict of guilty and sentence of death was again imposed. To review this judgment writ of error
The indictment was found and returned by a grand jury in and for DeSoto County at the spring term in the year 1920. Subsequently and during the regular session of the Legislature of 1921, DeSoto County was divided and from portions of it other counties, including the County of ITardee, were created. Chapter 8513, Acts of 1921.
Before proceeding with the trial in the Circuit Court of ITardee County the defendant, on the 7th day of October, 1921, interposed a plea to the jurisdiction of the Court upon the ground that the indictment is a finding of a grand jury of DeSoto County and is not an indictment of a grand jury of the Circuit Court of Hardee County, that there had been no change of venue of the case from the former to the latter county, and that the indictment had never been legally transferred to and filed in the Circuit Court of Hardee County. Upon motion of the State Attorney this plea was stricken. The indictment, by endorsement upon it, shows that it was filed in the office of the Clerk of the Circuit Court of Hardee County on August 16, 1921. The statute creating Hardee County by Section 12, provides: “All actions, suits .and prosecutions, and all proceedings in guardianship or administration, and all other actions, suits, prosecutions or proceedings that may be pending in DeSoto County in any Court or before any officer or board of said county, upon.this act going into effect whereof any court, officer or board of any one of said new counties would have had jurisdiction if said county had been in existence when such action or proceedings were instituted, shall be transferred to the court, officer or board of such new county having jurisdiction of such matters, and all pleadings, papers and documents in any way.pertaining to any such action, prosecution or pro
In support of the motion in arrest of judgment is an affidavit of defendant in which it is stated, in substance, that upon his arraignment preceding the first trial, when asked whether he answered to the name of Burnard Whidden he replied that he did not answer to the name of Burnard Whidden, but that his name was Burnard Whit-ten; whereupon the State Attorney announced that he would have the error corrected, but continued to read the indictment, and after it had been read asked the defendant whether he was guilty or not guilty; that thereupon the defendant made a statement to the court and the court announced that he would not accept a plea from him, but would appoint an attorney or attorneys to represent him, and that sometime thereafter the court did appoint attorneys to represent him but that he was never arraigned in the presence of said counsel and never in fact entered any plea to the indictment. In the brief of counsel .for defendant they state it is their belief “that the State Attorney took this indictment again to the grand jury and that they without taking the trouble to prepare a new indictment had the name Whidden erased and the name Whitten
During the progress of the trial an order was made by the trial court appointing- a guardian ad litem for defendant, he being a minor, not married, the person alleged to have been murdered being his wife. From its place in the record it appears that this order was not made and notice given “prior to the trial” (Sec. 6028, Rev. Gen. Stat.), but was made after the trial jury was empanneled and sworn and some'of the witnesses in behalf of the State had testified. After the appointment was made court was adjourned until the following day. Tire person appointed as his guardian was one of the attorneys representing the defendant in the trial. This attorney acted for him throughout the trial. In the affidavit of this attorney and guardian ad litem in support of the motion for new trial, among other things he said “that he is guardian and of
Evidence of an alleged confession by defendant was-offered and received in evidence in behalf of the State-over objection of the defendant, and this ruling is assigned as error. The witness testifying to the alleged confession was the wife of a brother of the defendant’s; deceased wife, for whose murder he was on trial. According to her evidence the conversation between her and the-defendant in which the confession was- made took place in the jail where the defendant was being held, some time-after his incarceration. No one else was in the immediate-presence of those engaged in the conversation, except perhaps other prisoners who were not named. So far as the-record discloses, no officer was near. The defendant ad
There are many assignments of error based upon .rulings
Concurrence Opinion
Concurring.
On the first trial as' shown by the record, the defendant was arraigned and pleaded not guilty to the indictment, and it does not appear that the State Attorney changed the spelling of the defendant’s name in the indictment
Even if Sections 3962 and 3963, Revised General Statutes of 1920, do not modify Section 6028, and it appears that the Court appointed the defendant’s attorney as his guardian ad Utem; and if the order making such appointment does not appear in the minutes at the beginning of the trial it does appear among the day’s proceedings and the party appointed as guardian ad litem of the defendant was the defendant’s attorney who made the first move in the ease when it was called for trial. It appears by an affidavit of the guardian in the record that he was appointed such guardian before the trial began, and this does not contradict but sustains the record of the due appointment of a guardian ad Utem of the defendant.
On the former writ of error it was not held that the confession there received in evidence was error; and even if such confession may be regarded as having been erroneously admitted in evidence, the confession admitted on this trial was made by the defendant under wholly differ-
' Sections 2812 and 2818, Revised General Statutes of 1920, forbid reversals for harmless errors; and the defendant has no legal right to a reversal for technical errors of procedure where guilt is charged is duly shown and found.
The identity of the defendant and his guilt of the murder as charged, is fully established and no legal rights of the defendant were violated at the trial. The trial court rendered the judgment that under the law and the evidence may properly have been rendered and the record discloses no prejudicial error.
Dissenting Opinion
Dissenting.
As I read the record in this case, five flagrant errors were committed, besides some lesser ones; but who can say that even the lesser errors in no wise influenced the jury in finding its hostile verdict?
First: In the indictment as originally returned by the grand jury, the defendant was described as Burnard “Whidden.” When the prisoner was brought before the Court for arraignment, the State Attorney told him to hold up his hand, and asked him whether he answered to the name of Burnard “Whidden.” He replied that he did not answer to the name of Burnard “Whidden,” but that his name was Burnard “Whitten.” The State Attorney then announced that he would have the error corrected, but continued to read the indictment, and at the conclusion asked the defendant if he was guilty or not guilty. The prisoner entered a plea of “guilty,” which the Court refused to accept and instructed the Clerk to
If this change was made by the grand jnry, it became a new indictment on which Whitten was not arraigned and did not plead to. If it was not made by the authority of the grand jury, it was a forgery. We must assume the former. Whitten was never arraigned on this changed and in effect new indictment.
Second: Section 6028, Revised General Statutes, 1920, provides as follows: ‘ ‘ That when any minor, not married, may be charged with any offense and brought before any of the courts, including municipal courts, of this State, due notice of such charge prior to the trial thereof shall be given to the parents, or guardian of such minor, provided the name and address of such parent, or guardian, may be known to the court, or to the executive officers thereof. In the event that the name of such parent or guardian is not known or made known to the court or executive officer or cannot be reasonably ascertained by him, then such notice shall be given to any other relative or friend whom such minor may designate. The service of notice required by this Section to be given to the parent, or guardian or other person provided herein may be made as the service of summons ad respondendum is made, or in the event such parent, or guardian or other person provided herein may be beyond the jurisdiction of the court,' then, and in that event, service may be made by registered mail, or by telegram, and return of such service shall be made by the executive officer of the court in the same manner as returns are made upon summons ad respondendum,”
The protection this statute is intended to secure for a person accused of crime, should be afforded him through every stage of the trial from the beginning. He was without this protection in everything preliminary to the introduction of testimony.
This statute comes before us for application for the first time since its enactment. Shall we place upon it a construction that will make it the help and protection contemplated by the Legislature by judicial confirmation of the legislative will, or shall we nullify the legislative will and absolve a trial court of its duty or obligation to observe it?
Minors are wards of the Court where their property rights are concerned, even without a statute, and they cannot be deprived of these except under the very strictest compliance with all the provisions of the law on the subject. The act under consideration makes minors the wards of the Court where their lives and liberties are involved. Shall they be less wards of the Court in a matter of life and death, than they are in the matter of an acre of land or the ownership of an ox ?
The necessity for this law may not appeal to every one, but that is not a matter for the courts to pass upon. It is on the statute books and should be enforced in all its strictness, particularly where the life of a human being is involved.
It is true the only injury that the record discloses is that he is sentenced to death.
When this case was first before this court, we said: ‘ ‘ The defendant’s testimony indicates that he is, perhaps, not of normal mentality, which makes it important that he should have the assistance of his parent or guardian, if he has one.” Whitten v. State, 82 Fla. 181, 89 South. Rep. 421.
Who can say that if this weak-minded, half idiot had had a guardian to help select his .jury that the result would not have been different?
Third: The error in admitting the confession alleged to have been made by the prisoner to Mrs. Rosa Nosworthy.
On the former trial of this case, the sheriff was allowed to testify to a confession which was improperly obtained. The confession alleged to have been made to Mrs. Nos-worthy was shortly after the alleged confession to the •sheriff.
The record in the former trial' shows that the confession to the sheriff was improperly obtained and should not have been admitted in evidence. On the second trial the sheriff did not testify to this confession, but Mrs. Nosworthy did, and the confession to her was the result •of the confession improperly obtained by the sheriff.
When the Court was inquiring into the admissibility of Mrs. Nosworthy’s confession during the absence of the .jury, objection to its introduction was made by the defendant, who stated that he was “prepared to show that the ■first statement, confession, was made to the sheriff while
The jury was then brought back into court, and in response to a question from the State Attorney, testified to an alleged confession by the prisoner; whereupon the defendant moved the court to strike this testimony because it was not shown to be voluntary, and because the statement was made while he was in the custody of the sheriff of DeSoto County, to whom he had previously made a statement that was involuntary, and because the character of the first statement to the sheriff had not been inquired into by the court: The court ruled it had already determined that the statement made to Mrs. Nosworthy was a voluntary one, and denied the defendant’s motion.
The refusal of the court to make an inquiry into the manner in which the first confession was obtained is clearly error, because upon the method by which the first confession was obtained depended the admissibility of the second confession. No rule seems to be more clearly settled than, “If a confession is obtained by such methods as to- make it involuntary, all subsequent confessions while the accused is under the operation of the same influences are also involuntary, and when once a confession under improper influence is obtained, the presumption arises that a subsequent confession of the same crime flows from the same influences even though made to a different person from the one to whom it is first made.” 1 R. C. L. 583.
The authorities .are so abundant and so overwhelming on
The same rule prevails in this State: McNish v. State, 45 Fla. 83, 34 South. Rep. 219. It seems quite clear that the trial court erred in refusing to investigate the method by which the first confession was obtained by the sheriff, as it was only by that means that it could properly decide whether the second confession was admissible.
In the instant case we have a confession obtained by an officer by improper influences, and shortly afterwards the confession repeated to some one else.
When the second confession is sought to be introduced the defendant requested the court to make inquiry into the manner which the first confession was obtained. This the court refused, and admitted the second confession over the defendant’s objection, without regard to the influence that had been exerted on the mind of this half-wit by the sheriff when he obtained the first confession.
Such a proceeding is most dangerous; to illustrate: A sheriff or other officer may by threats, by beatings, by promises of immunity, obtain an alleged confession. He may then have some one else interview the prisoner, who upon inquiry, acting from fear or the hope of immunity, repeats the statements made to the officer. Under this decision it would not be error to allow the second statement to be introduced in evidence, and to refuse to investigate how the first confession was obtained.
Fourth: I think the testimony clearly establishes that the prisoner was a moren — a mental deficient, whose mentality was that of a ten year old child, — or rather, he was not as intelligent as the average ten year old child. As this court said in its former decision, “The defendant’s
The testimony would have been much stronger to establish this mental weakness, had the court not erred by persistently refusing to permit the defendant to introduce evidence covering this point.
Fifth: J. R. Down was a witness on behalf of the defendant. During his cross-examination, when he seemed to be answering the questions in as frank and intelligible-manner as the questions propounded to him were susceptible of, the court broke in upon the proceedings with this remark: “The demeanor of the witness is not such as the court approves with regard to readily answering the questions and I direct now that the witness fully answer the-question or state that he has no knowledge, in order that there may come an end to this.”
This remark by the court could have no other tendency than to discredit the witness with the jury. Upon this point this court said in Hubbard v. State, 37 Fla. 156, 20> South. Rep. 235: “The utmost care should always be used by the trial judges, especially in cases where human life-is involved, not to let any expression fall, either by questions or otherwise, that is capable of being interpreted by the jury as an index of what he thinks of the prisoner, his. counsel or his case. ’ ’
See also Lane v. State, 44 Fla. 105, 32 South. Rep. 896; Galloway v. State, 47 Fla. 32, 36 South. Rep. 168; Disney v. State, 72 Fla. 492, 73 South. Rep. 598. This admonition will be lightly heeded by trial judges’ if appellate-courts condone such expressions.
Some of the errors that I refer to as of lesser weight are only so by comparison with the more serious ones I have discussed.
It frequently takes very able counsel many days and sometimes longer to confer with witnesses, digest and arrange testimony and prepare a proper defense. The Court allowed the defendant fifteen minutes.
(1) The defendant’s counsel considered that for a proper appreciation of the testimony, it was necessary that the jury should view the premises where the killing occurred. The court refused this reasonable and proper request.
The witness Dishong testified that he was “trailing a track in the sand right behind him, which the defendant admitted to me he was looking at me when I trailed him.
Upon objection, this testimony was stricken, but the court in doing so said, “I think that is part of a confession.” So while the testimony of the sheriff was stricken, the court in effort told the jury that there had been a confession by the prisoner to the sheriff Dishong.
(2) J. B. Proctor, Whitten’s half brother, undertook to testify to the impairment of the defendant’s faculties following an attack of typhoid fever.
The Court on motion of the State Attorney struck out all that part of the testimony as to his opinion of the condition of the defendant’s mind.
In view of the finding by this court that the defendant was not of normal mentality, the trial court should have been most liberal in permitting any testimony that would tend to throw light upon his mental responsibility, rather than excluding it and sending a half-wit to the gallows.
(3) The same criticism is made of the rulings of the court on objections to other testimony on behalf of the
The errors complained of not only “ resulted in a miscarriage of justice,” but being violations of the defendant’s constitutional right to a fair and impartial trial, and in violation of well settled principles of law, worked in themselves a miscarriage of justice.
For these and other errors, I think the judgment should be reversed.