*1 300 WILLIAMS, FLORIDA OF
HENRY STATE Tеrm, (2nd) June 1945 22 821 So. En Banc July for appellant. Bryan, & Bryan Bowen, and Reeves As- Attorney General Watson, Tom J. General, for appellee. Attorney sistant *2 THOMAS, J.:
A foul murder was committed when two colored men Tailor, entered the in shop Tampa elderly of Nick the struck an clerk dead with concrete block one of them con- sack, cealed in a rifled the cash and fled. register, view, however, A the this court entertain that majority of because the the cannot stand judgment finding appellant guilty is grave the manner his confession. There obtaining doubt there could have been conviction without event, himself, and, testimony any in against defendant it cannot be said be considered the allowing it to was harmless error. Inasmuch as we believe the circum- stances the surrounding confession were infected want of the freeness and voluntariness so and long recog- so often nized by this other and сourts as elements to indispensable competency confession, of a confine we shall our remarks to particular case phase appellant. State’s the In gauging the propriety of the methods employed procure the statement we shall solely resort own State’s wit- nesses and ignore the testimony offered the in appellant refutation.
Shortly city after homicide a detective driving was curb, he along streеt when spied appellant, stopped at appellant arid halted the him he telling without was why being accosted. asked Upon where was going, negro home, replied that he was going gave and the officer the cor- rect address. The detective opened door to leave his car; ran, whereupon the appellant officer fired at him. detective, Seven or minutes eight later this after calling cars police house, to surround the went to the address given him, unafraid, “unconcerned,” where the appellant was found “perfectly calm.” He was placed custody then in transported warrant was the police station. This midnight. about occurred in morning began inquisition
About two o’clock in the alleged which culminated confession and lasted all until through the noon of the Interro- night following day. the officer apprehended were three: who gators aрpellant, detective, another and the chief of detectives. All armed. were to six feet feet eleven inches from five height in ranged
They The 199 to 220 inches, weight pounds. from two five feet ten twenty-two, was twenty-one or aged prisoner, or 140 weighed pounds. tall and inches and incessant for ten continuous examination was five appellant that he asked One officer estimated hours. question- and he said the or seven hundred questions, hundred time, was for a at least ing appellant, persistent, had they place the officers completely surrounded present the officers chosen for the One of inquest. hours, and for three and one-half full one for two one period, brought prisoner hours. At eleven o’clock a meal *3 him, in any served recess the evidently but examination. but before during investigation, other this
At some time or confession, took the ap- one of the detectives supposed the car, handcuffed, ostensibly per- to interview out in a pellant, night the said knew his whereabouts sons who the prisoner the officer During trip committed. this the crime was before victim; so he took body he to see decided wished establishment, where him to the undertaker’s appellant with visit, so the remains. The purpose both viewed the said, he just detective was “to see where [the victim] hit, were,” although he admitted just where the wоunds Why it was it was committed.” “knew how [the crime] at necessary to make visit to the undertaker’s expedient or his time, custody, while he had in or particular appellant when why by he should have been accompanied appellant admission of investigation was still in no progress made, had been is not explained. any part did not confess Even then the defendant crime. station. to the brought police mother was appellant’s
Then arе unable the transaction we had with she connection What record, remark upon and we cannot from to determine her in a cell without and putting her detaining motive said we to which testimony of from the digressing confine our comment. would outset we at the of a quotation significant We this narrative with the close “ detectives, said: . . he em- of the chief of who . statement until that [any denied it connection with the phatically crime] in and I talked to her in his afternoon when mother came presence.” admissibility governing
Of course the basic principle 12, Declaration of in section of confessions is imbedded following Constitution where of the Florida Rights, any compelled shall be . . . language is found: “No person This himself . . .” a criminal case to be witness amend five of the in article appears identical phraseology as States. Inasmuch of the Constitution of the United ments in these safеguarded portions defined and right or im privilege is not a fundamental one or Constitution Constitution, in the Four munity forbidden the Federal Jack, state, Amendment, D. teenth to be John abridged Kansas, 50 L. Ed. 199 U. S. 26 S. Ct. State of Jur., Law, deal first Am. shall page Constitutional we with the in the the inhibition in our own question light of Bill of then remark as it is viewed Rights, guarantee another Supreme Court of the United States under provision of the Federal the Fourteenth Amendment of Constitution. accused, witness, or the is рrotection personal *4 and by do a free may him. This he may by
and be waived can result no such waiver voluntary guilt, disclosure of but are these ingredients circumstances unless from the attendant Senior, 1, 652. It is not Ex 37 Fla. 19 So. See present. parte he has confession any to whether left to the witness determine fact admissible, law and question made mixed of is but this of If the by jury. trial in the absence is decided court then passes confession is held to be admissible State, credibility. its Nickels v. infra. this court are found many pronouncements
In of opinions admissible render confessions of the characteristics de- to by juries impaneled considered and to be properly Simon, slave, innocence. In v. or the issue of cide (1853) old Florida, discussing Fla. 285 State of 5 be free the court held that to common law principle, 304 by any the confession “must not be extracted sort
voluntary violence, any or im- by of threats nor be obtained direct оr' nor exertion of im- plied slight, by any however promises influence.” before proper Although long 'was written constitution, our rule adoption present of announced seems mesh the court expressions latter on State, 474, 537, subject. In Green 40 v. Fla. 24 So. it was said act, mind “the must be free accused at the time by clearly uninfluenced fear hope; or and ... it must be shown they were before voluntarily made” confessions could be admitted. They may be considered the jury, State, Nickels 90 “freely Fla. 106 So. when voluntarily made by any the accused and uninfluenced threat, fear, promise, or other hope, illegal inducement ...” study
After a painstaking in this record case we have concluded that the confession of the defendant given circumstances described the witnesses for the .State themselves was not free voluntary as those words have been defined in the decisions we have and many cited others on subject. We are convinced that admission of the confession, was, obtained as this one amount to compelling the defendant testify against himself in contravention the safeguard given in Section of the Bill of Rights of the Florida Constitution. The point may be decided on that basis alone.
Many of circumstances surrounding supposed con might instance, fession be isolated For eliminated. confession is not rendered invalid becаuse the de simply custody, fendant at the time in McDonald v. 70 Fla. or the So. examination protracted, or conducted by a person superior or physique mentality, but the volun tariness must be determined from all these circumstances together. considered When this method is here and adopted the statement was is taken given under which atmosphere into approached account the solution is with the caution exercised, have must be Nickels v. we admonished *5 the appellant we are lead to conviction that supra, not so uninfluenced and so unconstrained experiences his and voluntary expression. that his statement was a free We have remarked com- protection that against testimony the pulsory rights not one of fundamental might not be of abridged provisions because Federal Constitution. It is an interesting commentary that very matter of efficacy freely of confessions ob- not tained has been held Court of United Supreme to States be determinable under of provisions the Fourteenth Amendment to words, the Federal constitution. In other tribunal in Chambers Florida, v. State of 309 U. S. 60 S. Ct. 84 L. held Ed. that certain who had petitioners been convicted of a capital crime could assert under “due process clause” of the Constitution the have their right or innocence determined of confessions ob- independent tained contrary of provisions that amendment. Amendment, course, Fourteenth of deals depriving life, citizens of liberty, law, or of property due process or them denying equal protection of the laws.
We conclude, provisions then that under the of State (Section 12, Constitution Rights) Bill quoted we very beginning, is entitled a reversal defendant this case .confession, because of the inadmissibility of the decide, too, we under prоcess the due the Fed- clause.of (Fourteenth eral Amendment), Constitution the confession alleged to have made not in- could been properly have troduced against him.
Reversed and remanded trial. for a new CHAPMAN, J., BUFORD, JJ., C. BROWN and concur. TERRELL, SEBRING, JJ., ADAMS and dissent.
SEBRING, J.: Williams, is under sentence of life Henry
The appellant, Williams Steve Palakas. murder of one imprisonment for the jointly indicted tried Gordon were' and one Curtis Charlie with- crime, of the trial Gordon during but course guilty plea guilty of not and entered рlea drew trial proceeded charged. Thereupon offense Williams, degree murder in first found guilty who was mercy. recommended to *6 in the head by being Palakas murdered struck
Steve was crime a his skull. The concrete block which crushed morning in the on eight occurred a few minutes after o’clock as- murderous Tuesday, July 1944. At the time of the him, cleaning Palakas at a upon employed sault was Nobody on Harrison Street in Florida. pressing shop Tampa, lay Palakas. But while attack actually upon witnessed the an em- a semi-conscious condition shop on the floor men— young shop in a rear room of the saw two ployee hurriedly go shop assailants —leave the his presumably Street, very short Tampa Harrison toward upon west Street day same away. time approximately distance At side of on the west yard her at another witness work from running men come young saw three Tampa Street in which shop clеaning pressing of the direction general Har- assaulted, the intersection of toward had been Palakas They company, there parted Street. Tampa rison Street Street, the third North on proceeding Tampa of the men two men young of the on across the intersection. One continuing Henry as being' witness recognized by in the group very on the scene Police officers were Williams, the appellant. They found committed. had been after the crime soon had and its opened been the establishment drawer of the cash immedi- a hospital rushed to Palakas was taken. contents admittance, a result as died soon after treatment. He for ately his as- inflicted, identified having injuries sailants. been them that Williams had coming information
Upon at about running vicinity pressing shop seen from the murder, began looking officers police the time of the July on Shortly midnight before the hour of appellant. 18, 1944, walking along officers came Williams police Street, four blocks going Harrison toward his home three or away. The officers called Williams to their car and started gave Williams questions, In him. answer questioning One of living. he was name and told the officers where car, for the apparently police from the alighted officers then whereupon custody, into táking suspect purpose minutes fled, at his home few apprehended Williams later. 26, 1944, murder indictment degree a first July
On
Charlie Gordon.
Henry Williams and Curtis
returned
*7
an
1, 1944,
Williams filed
unverified
August
appellant
On
The motion to quash
motion to
the indictment.
quash
ap-
in
of the
pais
knowledge
based
matters
within
upon
to, the trial court cor-
being
The motion not
sworn
pellant.
Love,
overruled
ex
rectly
the motion. State
rel. Hancock
State,
144 Fla.
197 So.
143 Fla.
Section
Florida
“If
Statutes
provides
the defendant does not move to
or infor-
quash the indictment
mation before or at
thereto he shall be
pleads
the time
taken to have waived all
are
for a
objections
grounds
indictment,
motion to
quash.” By
ap-
pleading
pellant waived all matters
been
might
up by
have
set
motion
quash
to
before plea. The court had
thereafter
power
to allow the
appellant
guilty
to
of not
plea
withdraw
if,
present matters
in
exercise of its
abatement
discretion,
judicial
it had seen
to allow
fit tо do so. Its refusal
dis-
cannot be
purpose
for such
plea
the withdrawal
discretion.
judicial
turbed unless
a clear abuse of
there was
We find no
Richardson v.
Fla.
At the trial Williams was convicted solely circum- stantial' evidence and upon certain confessions made in the presence of the police officers after he had been taken into custody. Without the confessions the evidence is insufficient to support the verdict. The refusal of the trial court exclude the confessions is as assigned error.
The record before that us shows when Williams was first 18, 1944, July taken into of custody night on the he denied crime, any knowledge asserting that he had the spent and night July following morning July of 17th the of 18th at a movie theatre he where had clean helped up place after However, the evening shows had ended. after being subjected station, to questioning át the police intermittently, over a of time period extending from approximately A.M. to 6 P.M. 19th, July on Williams confessed his and also implicated Curtis Charlie Gordon. Gordon was then taken into custody as a Thereafter, suspect. day, on the same Gordon and Williams were brought together and each admitted participa- tion in the crime but contended that the other had struck the blows that Otherwise, killed Palakas. as appears from the record, their statements were in reasonable hаrmony concern- ing details of the crime. The following day at about 2 P.M. Williams and Gordon again questioned by were police .the officers, this time before a police stenographer. confes- sions made on this occasion were and typed then were signed They Williams and coincided substantially Gordon. Later,, made. previously confessions of evening 20th, July Williams interrogated by the Assistant State Attorney of the circuit and the proceedings were taken and transcribed the official court reporter. Before beginning State Attorney explained Assistant .examination held and interrogator Williams official position of examination information purpose was to elicit con- cerning the death of Palakas. Williams fully Steve was also advised of his refrain from right answering Constitutional questions might any tend to criminate him and that given answer might thereafter be used in a prosecution any quеstions He told that answers to should him. was also freely given of reward. After voluntarily hope be signified Williams to submit to warning willingness examination. This after also proceeding, being typed, was by Williams. The answers him on this oc- signed given by substantially casion tracked given police answers on officers the previous occasions. trial,
Before confessions the trial admitting the at excluded the for the evidence judge purpose hearing concerning сircumstances under the confessions been had elicited. The and the defendant each offered State evidence on the issue of voluntariness of the confessions. evidence This was at variance in some Williams particulars. contended that the freely voluntarily confessions were not made, in that before confessing he had been and other- beaten food, physically wise punished, had been denied water hours, for a slеep period sixteen or seventeen had been continuously such questioned persistently period over time, confess, and had been if he told that did his sick not would be sent county jail mother would be *9 treatment, burned. This course of to the according appellant, him to impelled guilt against confess his wilh State’s witnesses denied any They such treatment of the defendant. at length testified and in detail the treatment ac- concerning Williams, cordеd and the conversations had with him and to the police was admitted prisoner from the time the others given. the confessions was At the station until the last of issue, denied judge on the the trial hearing conclusion of the confessions by made the defendant be motion excluded, jury. go evidence to to the allowed the
The confessions in
are
An extra-
question
extrajudicial.
judicial
freely
confession is
in evidence when
admissible
threats,
voluntarily made
accused and
by
by
uninfluenced
inducement,
reward,
fear,
illegal
or other
hope, promise
arrest and in
at the
prison
the accused be under
though
even
479,
time,
State,
and even
v.
90 Fla.
106 So.
Nickels
may
may say
not have been warned that what he
though
State,
117, 101
can be used
him.
v.
88 Fla.
So.
Phillips
State,
Moreover,
204; Kearson v.
123 Fla.
We carefully have reviewed the evidence on the issue heard preliminarily by the trial and then judge the jury. submitted to It comprises pages type- record, written record before us. As appears to us hearing presence out of the jury fairly and scrupu- lously conducted an able and experienced judge trial who meticulously rights observant constitutional testimony the defendant. He determined conflicting that there were not such influences exerted as would improper render the We find no error in his confessions inadmissible.. *10 ruling.
311 case, The evidence in jury heard the entire including and the manner testimony all to the confessions relating they had been The and value weight obtained. to be such given evidence for the under jury determine ap State, propriate instructions from the court. Holland v. 39 298; State, 22 373; Fla. So. Bates v. 78 Fla. 84 So. 347, 196 Pearce v. 143 Fla. So. jury 685. Apparently did not believe the defendant’s alibi testimony. Neither do we. We have carefully considered all of the evidence could verdict, have arrived at its and we find that it was sufficient to establish beyond exclusion a reasonable doubt.
We find no merit in the contention that substantial. trial court committed error when it refused to reversible. a grant severance on motion of the defendant.
All other have questions considered, raised been duly view, are without substance. In our the judgment appealed from should be affirmed. ADAMS, JJ.,
TERRELL and concur. OF THE OF WEST PALM THE HOUSING AUTHORITY CITY BEACH, FLORIDA, GILLER, the use and benefit of CHARLES FLORIDA, INC., Corporation, v. WATT & OF Florida SINCLAIR COMPANY, Corporation York GLOBE INDEMNITY a New authorized to do Florida. business (2nd) Term, June 1945 23 So. July Division A Rehearing Sept. denied 1945. Miller, O. S. for appellant.
Alley, Drew, Middleton, Burns & for appellee.
PER CURIAM: trial. We granting an order new
This is an from appeal reversible error. and find no duly record have considered the is affirmed. judgment ADAMS, JJ., TERRELL, CHAPMAN, J., BUFORD C. concur.