Lamb v. State
| Decision Date | 19 December 1925 |
| Parties | LAMB v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied Feb. 10, 1926.
En Banc.
Error to Circuit Court, Manatee County; W. T. Harrison, Judge.
John J Lamb was convicted of murder in the first degree with a recommendation to mercy, and he brings error.
Affirmed.
See also, 104 So. 855, and 107 So. 535.
On Petition for Rehearing.
Syllabus by the Court
Indictment charging offense substantially in language of statute or language of equivalent import should not be quashed (Rev Gen. St. 1920, §§ 6063, 6064). An indictment should not be quashed if it charges the offense substantially in the language of the statute or in language of equivalent import. Sections 6063 and 6064, Rev. Gen. Stats. of Florida 1920; Akin v. State, 98 So. 609, 86 Fla. 564, and cases cited; Hall v. State (Fla.) 107 So. 246, decided this term.
Indictment is sufficient, unless so vague, inconsistent, and indefinite as to mislead accused, embarrass him in preparing defense, or expose him after conviction or acquittal to substantial danger of new prosecution for same offense. The test of the sufficiency of an indictment under our law is whether or not it is so vague, inconsistent, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.
Testimony as to threats by accused or codefendant in his presence before killing is relevant to show malice, or, when made long before, to show deliberation or premeditation. Testimony of threats made by the accused or by a codefendant in the presence of the accused, prior to the killing, is always relevant to show malice, or when made long before, to show deliberation or premeditation.
Relevancy of threats depends largely on light shed on previous malice or premeditation, and hence remoteness in time is no objection to their receiption, though considered in determining weight as evidence of existing intent. The relevancy of threats depends largely upon the light they shed on previous malice or premeditation. Hence their remoteness in time is no objection to their reception, though it may and indeed must be considered in determining their weight as evidence of existing intent.
General practice, in absence of statutes to contrary, is to permit jury to take with them on retirement all articles introduced in evidence which judge thinks will aid them; articles taken being ordinarily in discretion of trial court. It is the general practice both in civil and criminal cases, in the absence of statutory provisions to the contrary, to permit the jury to take with them to the jury room, on retirement all articles introduced in evidence which, in the opinion of the trial judge, will aid them in their deliberations; what articles should be so taken being ordinarily in the discretion of the trial court.
New trial will not be granted because jury was allowed to carry to jury room articles introduced in evidence, unless it can show that they received prejudicial testimony therefrom not adduced at trial. A new trial will not be granted because the jury was permitted to carry with them to the jury room articles introduced in evidence which would aid them in their deliberations, unless it can be shown that they received testimony therefrom other than that adduced at the trial, and that such additional testimony was prejudicial.
Trial judge's finding, after hearing testimony, that jurors are qualified, will not be disturbed, unless abuse of discretion or prejudice to material rights of party is shown. When the tiral court has heard the testimony and fully investigated charges of disqualification as to any one or more jurors in a cause, and has in the exercise of a sound discretion pronounced them qualified, his finding will not be disturbed by the appellate court unless abuse of discretion is made to appear or material rights of some party or parties to the cause is shown to have been prejudiced.
After verdict and discharge of jury, one charging disqualification of juror has burden to show that he was prejudiced in respect to party, that prejudice was improperly withheld before acceptance on jury, that he gave false answers on voir dire, or that he was otherwise disqualified. When a jury has returned its verdict and been discharged, the burden is on the one charging the disqualification of any member thereof to show that such juror was prejudiced in respect to some party to the cause, that such prejudice was improperly withheld before acceptance on the jury, or that such juror gave false answers to opinion on voir dire examination, or that such juror was in some other respect disqualified to sit as a juror in said cause.
No charge, not stating law of case correctly and not predicated on facts in evidence, is warranted. No charge is warranted that does not state the law of the case correctly, and is not predicated on the facts in evidence.
Evidence held to support conviction of first degree murder. Testimony examined and found sufficient to support verdict.
Juror's statements, believed by court, that he had no opinion when sworn and did not remember having stated opinion as to accused's guilt, and that he could try him fairly, though he had read published account of killing, held to rebut charge of disqualification. At the time A. was selected as a juror to try B., he stated that he had no recollection of having formed or expressed an opinion as to B.'s guilt or innocence, that he, A., heard the evidence of two witnesses at the preliminary hearing and was not positive, but did not remember having stated from what he heard that B. was guilty, that at the time he was sworn as a juror he had no opinion as to the guilt or innocence of B., and that he had never at any time had any hard feeling against B. On voir dire examination to determine his qualification as a juror. A. testified that he had read a detailed published account of the killing of C. by B., but that he could sit as a juror in his case and try him fairly and impartially and render verdict according to the law and the evidence. If the trial court is satisfied of the truth of such statements, they rebut any charge of A.'s disqualification.
One forming opinion from rumor or newspaper statements not disqualified as juror, if he has expressed no opinion as to truth thereof and states that he can render fair and impartial verdict according to law and evidence, and court is satisfied of truth of such statement. A person called as a juryman may have formed an opinion based upon rumor or upon newspaper statements, but if he has expressed no opinion as to the truth of the newspaper statements, he is still qualified as a juror if he states that he can fairly and impartially render a verdict thereon in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statements.
Thomas Palmer, W. B. Dickenson, and Knight, Thompson & Turner, all of Tampa, and John B. Singeltary, Dewey A. Dye, and J. Henry Taylor, all of Bradenton, for plaintiff in error.
Rivers Buford, Atty. Gen., Marvin C. McIntosh Asst. Atty. Gen., and Herbert S. Phillips and O. K. Reaves, all of Tampa, for the State.
John J. Lamb was indicted and tried for murder in the first degree at the spring term of the circuit court for Manatee county. He was convicted of murder in the first degree with recommendation to mercy, and sentenced to imprisonment by confinement in the state prison at hard labor for the term of his natural life. Motions to quash the indictment and for new trial were denied and writ of error taken to the judgment.
The first assignment of error challenges the denial of the motion to quash the indictment because the word 'did' is omitted from the concluding paragraph thereof, and because of such omission the indictment fails to charge that plaintiff in error killed Harold Gates.
An indictment should not be quashed if it charges the offense substantially in the language of the statute, or in language of equivalent import. Sections 6063 and 6064, Rev. Gen. Stats. of Florida, 1920; Akin v. State, 98 So. 609, 86 Fla. 564, and cases cited; Hall v. State (Fla.) 107 So. 246, decided this term. It cannot be said that the indictment in this case is so vague, inconsistent, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. Such being the test to determine the sufficiency of an indictment in this state, and the test having been substantially met, it was not error to deny the motion to quash.
The second, third, fourth, fifth, and sixth assignments of error challenge the ruling of the trial court admitting evidence of certain threats made by plaintiff in error and testified to by state witnesses Frank Blackburn, Sadie Davis, Elam Rood, and Harvey Tillis.
Plaintiff in error contends that evidence of these threats should not have been admitted because: (1) They were too remote; (2) the state was first required to prove an overt act, which it did not do; (3) testimony of such threats was prejudicial to the plaintiff in error; (4) no witness on the part of the state testified positively who fired the first shot; (5) certain testimony on the part of the plaintiff in error was in conflict with that offered by the state; and (6) the state attorney on cross-examination was permitted to discredit the testimony of some of the witnesses of the plaintiff in error.
By the well-established rule of criminal evidence, testimony of threats made by the accused or by a codefendant in the presence...
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