Whitten v. State

97 So. 496, 86 Fla. 111

• Court: Supreme Court of Florida
• Decided: July 7, 1923
• Status: Published

Opinions

West, J.

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 was taken from this Court. The facts sufficiently appear in the former opinion and dissenting opinion.

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 proeeeding, shall be delivered by the clerk or other officer, court or Board of DeSoto County having custody thereof, to the proper officer-, court or board of such new county.” This section, with the delivery of the indictment as required bjr the statute to the Clerk of the Circuit Court of Hardee County, operated to transfer the cause to that county and to confer jurisdiction upon the Circuit Court in and for Hardee County to hear and determine it. The plea to the jurisdiction was without merit. There was therefore no error in granting the motion to strike it, nor was there error in overruling the demurrer interposed to the indictment, nor in denying the motion in arrest of judgment presenting the same question.

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 written therein.” The name of the defendant as it appears, in the indictment set out in the transcript of the record is Burnard Whitten. The record shows an arraignment and plea of not guilty. The record also contains a certificate of the trial judge that the defendant was duly arraigned upon the indictment in the ease prior to the first trial and upon such arraignment plead guilty, but the court declined to accept this plea of guilty of murder in the first degree and caused the clerk to enter a plea of not guilty. Upon the issue made by this plea to the indictment there have been two trials, both resulting in a verdict of guilty of murder in the first degree. The record shows that the defendant was duly arraigned and that he was indicted and tried in the name which, according to the allegations of his affidavit, is his true name. There is no question about the identity of the defendant. To consider this, alleged irregularity of procedure would take us outside the transcript of the record which is verified by the court from which it comes.

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 counsel for Burnard Whitten, the defendant named in the-within motion. That he was present throughout the trial of the said defendant.” The omission to appoint a guardian ad litem for the defendant and give to such guardian “due notice of such charge prior to the trial thereof,” it. is contended is error which requires a reversal of the judgment. But it is not made to appear that any injury resulted to the defendant because one of his representatives, was not clothed with the authority of guardian ad litem from the inception of the trial. On the contrary, it affirmatively appears from the record that the person appointed acted either as counsel or guardian ad litem, or both, for-the defendant throughout the trial, that his attorney and guardian ad Utem is still of counsel for defendant, and that he was in both trials and still is represented by other-able counsel. It is hardly conceivable that if injury had resulted to defendant on this account his counsel would be unable to point it out. The omission of the court to make-the appointment at an earlier stage of the proceedings, if' technically erroneous, was, under the circumstances, not. harmful. Sec. 2812, Rev. Gen. Stat. ’

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■mitted the killing and inquired where the deceased was buried. During the examination of this witness and in the absence of the jury, counsel for defendant announced to the court that they were prepared to show that the first confession of defendant was made to the sheriff of the county while defendant was in his custody, he being the common jailer of the county, and requested an inquiry by the court if this first confession were voluntary. The Court held that the confession of the defendant to the witness being examined appeared to be voluntarily made and declined to make the inquiry requested, to which ruling there was an exception. The jury returned into the court room and the examination of the witness proceeded, the witness testifying to the confession to her by defendant that he shot and killed the deceased, as alleged in the indictment. Whereupon counsel for defendant moved to strike the evidence of the witness upon the ground that the confession was not shown to have been voluntary and was made while the defendant was still in the custody of the sheriff as jailer of the county, to whom he had previously made a confession alleged to have been involuntary. The Court overruled this motion, stating that it had already been determined by the Court that the confession of the defendant to this witness appeared to be voluntary and that the evidence was therefore competent and admissible, to which ruling there was also an exception. There is nothing in the record, except the statement of counsel in their motion to strike this evidence, to indicate that the defendant had previously admitted his guilt to the sheriff, while in his custody, or that he had been induced by improper- means to make such confession. If it had been proved that there was a previous confession and that it had been obtained by such means as would exclude it, there are many authorities to the effect that a subsequent confession of the same or similar facts is not thereby rendered inadmissable, but may and should be admitted if the court conclude, from all the facts and circumstances surrounding it, that the improper influence had been removed. Green v. Commonwealth (Ky.), 83 S. W. Rep. 638; Turner v. State, 109 Ark. 332, 158 S. W. Rep. 1072; State v. Lowry, 170 N. C. 730, 87 S. E. Rep. 62; Dixon v. State, 116 Ga. 186, 42 S. E. Rep. 357; State v. Phelps, 138 La. 11, 69 South. Rep. 856; Commonwealth v. Myers, 160 Mass. 530, 36 N. E. Rep. 481; State v. Foster, 136 Ia. 527, 114 N. W. Rep. 36; Andrews v. People, 33 Colo. 103 79 Pac. Rep. 1031; State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404; State v. Howard, 17 N. H. 171; Thompson v. Commonwealth, 20 Gratt. (Va.), 724; State v. Carr, 37 Vt. 191; Levison v. State, 54 Ala. 520; Simon v. State, 36 Miss. 636. There is nothing in the record to indicate that the confession made to this witness was not voluntary. It appears to have been entirely so. The trial court, as was its duty, so determined upon a preliminary investigation in the absence of the jury. There was no effort on behalf of defendant to prove that there was any consideration inducing it. He, according to the record, tendered a plea of guilty which was not accepted. There was therefore no error in overruling the objection to this evidence. Stiner v. State, 78 Fla. 647, 83 South. Rep. 565; Bates v. State, 78 Fla. 672, 84 South. Rep. 373; McDonald v. State, 70 Fla. 250, 70 South. Rep. 24; Sims v. State, 59 Fla. 38, 52 South. Rep. 198; Fowler v. State, 170 Ala. 65, 54 South. Rep. 115; Godau v. State, 179 Ala. 27, 69 South. Rep. 908; Stone v. State (Ala.), 93 South. Rep. 706; McCleary v. State, 122 Md. 394, 89 Atl. Rep. 1100; Tarasinski v. State, 146 Wis. 508, 131 N. W. Rep. 889; State v. Brennan, 164 Mo. 487, 65 S. W. Rep. 325.

There are many assignments of error based upon .rulings of the trial court overruling objections on behalf of the defendant to evidence offered by the state or excluding evidence offered by the defendant. Even if technical errors were committed in such rulings, no harmful error is made to appear. The evidence is ample to sustain the verdict. Every time the defendant has spoken of which there is any evidence since the homicide, he has confessed his guilt. Two juries of twelve men each have found that the evidence offered by the State proved it beyond a reasonable doubt and have returned a verdict of guilt, which they were instructed beforehand means that he must pay the penalty of death imposed by the law. No fundamental right of the defendant is shown to have been infringed. Ward v. State, 82 Fla. 383, 90 South. Rep. 157; Collinsworth v. State, 82 Fla. 291, 89 South. Rep. 802; Poyner v. State, 81 Fla. 726, 88 South. Rep. 762; Riggins v. State, 78 Fla. 459, 83 South. Rep. 267; Dixon v. State, 77 Fla. 143, 80 South. Rep. 741; Barker v. State, 76 Fla. 164, 79 South. Rep. 436. The alleged homicide appears from the proof offered on behalf of the State to have been committed under circumstances indicating a deliberately planned and premeditated murder. No reversible error is made to appear, so the judgment is affirmed.

Whitfield, Ellis and Terrell, J. J., concur. Taylor, C. J., and Browne, J., dissent.