Smith v. State

• Decision Date: 04 October 1937
• Citation: 129 Fla. 388,176 So. 506
• Court: Florida Supreme Court
• Parties: SMITH v. STATE.

176 So. 506

129 Fla. 388

SMITH v. STATE.

Florida Supreme Court, Division A.

October 4, 1937

Rehearing Denied Nov. 4, 1937.

Error to Circuit Court, Indian River County; Elwyn Thomas, Judge.

Johnny Smith was convicted of murder in the first degree, and he brings error.

Affirmed.

BROWN J., dissenting in part.

COUNSEL C. P. Diamond and J. W. Boring, both of Vero Beach, and C. Clyde Atkins, of Stuart, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.

OPINION

BUFORD, Justice.

Writ of error brings for review judgment of conviction of murder in the first degree without recommendation to mercy.

Plaintiff in error presents six questions as to which he requests our consideration. Question 1, as stated by the plaintiff in error, is as follows:

1. 'On an issue as to whether names in jury box were selected by County Commissioners as a Body or by the Commissioners as individuals, it was shown that each of the five county commissioners selected a list of names from the registration books of his District, and that in such selection the other four commissioners did not participate; that the sheets containing names thus selected by the five commissioners were fastened together and verified by the commissioners. Was that a personal selection of names for the jury box by the Board of County Commissioners as a body as required by law?'

As stated by the Attorney General, the question is framed as follows:

'Question 1. Are the provisions of section 4444, Compiled General Laws of Florida, 1927, relating to the selection of jury lists, sufficiently complied with by the County Commissioners, when each of the County Commissioners personally makes from the registration books in his district, a list of persons qualified to serve as jurors, which lists of names are then submitted to each of the other County Commissioners and approved by them as a Board, and which lists are then fastened together and certified in accordance with section 4444?'

We think the latter is the better statement of the question involved.

Questions 2 and 3 are involved in question 1, and will be answered in discussing that question.

Question 4, as stated by the plaintiff in error, is as follows:

'In murder trial a witness for the State gave testimony on direct examination to the effect that he saw defendant shortly after fatal assault, about a mile and a half from scene of crime, and exchanged some words with defendant, and then the witness in answer to question of state attorney gave this testimony, with reference to defendant:

”He stood up there and he didn't look right * * *' Was that testimony subject to motion to strike?'

Question 5 is as follows:

'Defendant, an ignorant negro, was arrested and placed in County jail, on suspicion that he had committed or participated in a murder. The second day he was in jail, the jailer, a white man, told the negro that the only way he, the negro, could save his life would be to confess. Later the negro signed a confession, and gave testimony before grand jury in nature of a confession. Did the jailer's statement to the negro render the confessions inadmissible?'

Question 6 is as follows:

'Defendant shot deceased with a shot gun loaded with Number eight bird shot, and immediately after firing the shot, threw the gun down and ran away. About time defendant ran away, deceased was shot through the abdomen with a 38 caliber pistol bullet fired by a person other than defendant. Deceased lived several hours after being shot. Physician who made post mortem examination of deceased testified that either shot was capable of producing death. In that situation was defendant entitled to have the jury given requested charges embodying the proposition: That if the jury should find from the evidence that deceased died from the effects of a wound inflicted by a person other than defendant, and that such wound was inflicted after defendant had abandoned all criminal intent, defendant could not be convicted?'

Reverting to question 1. The record shows that the county commissioners from each of the county commissioner's districts prepared from the registration books a list of persons qualified to serve as jurors from his respective district; that the list of names prepared by each of the county commissioners, respectively, was submitted during a meeting of the board of county commissioners held for the purpose of preparing the jury list to each of the other members of the board of county commissioners; that such lists so prepared were respectively approved by the members of the board of county commissioners in meeting assembled for that purpose and that such lists were then made up in a single list and adopted by the board of county commissioners as the jury list for Indian River county for the year 1936. To the list was attached an affidavit in the following language.

'State of Florida

'Indian River County

'Before the undersigned authority on this day personally appeared J. J. P. Hamilton, Chairman; Frank C. Vickers; R. E. Mudge; E. P. Poole and Edwin A. Helselth, who being duly sworn say severally that as members of the Board of County Commissioners in and for said County, they personally selected and made out the foregoing list of names of persons qualified to serve as jurors in said County, and that affiants know or have good reason to believe, that each of the persons whose names appear in said list is a law abiding citizen of approved integrity, good character, sound judgment and intelligence, not physically or mentally infirm, is above the age of 21 years, is a citizen of the State of Florida, has resided in this State for one year and in this County for Six months and has not been convicted of bribery, forgery, perjury or larceny, of any felony, and is otherwise qualified under the law to serve as a juror; that the foregoing jury list has been signed and verified by the said Commissioners as having been personally selected as aforesaid, and as possessing the prescribed qualifications according to their best information and belief.

'J. J. P. Hamilton

'R. E. Mudge

'Frank C. Vickers

'E. P. Poole

'Edwin A. Helseth

'Subscribed and sworn to before me at Vero Beach, said County and State, this 17th day of February 1936.

'Miles Warren

'Clerk Circuit Court, Indian River County, Florida.'

The list prepared, as above stated, was certified by the members of the board of county commissioners as:

'Jury List, Indian River County, Florida

'1936

'Selected February 17th 1936, as possessing the qualifications of Jurors as prescribed by the Laws of Florida.

'J. J. P. Hamilton

'R. E. Mudge

'Frank C. Vickers

'E. P. Poole'

Then followed the affidavit above quoted (page 3).

Section 2772, R.G.S., section 4444, C.G.L., provides, in part as follows:

'The county commissioners of the several counties shall hold a meeting in the first week of January of each year, or as soon thereafter as practicable, and at such other times as the circuit judge may order and shall select from the list of male persons who are qualified to serve as jurors under the provisions of section 4443, and personally select and make out a list of not less than two hundred fifty nor more than five hundred persons properly qualified to serve as jurors who, in addition to the qualifications above mentioned, shall be such persons only as the said commissioners know, or have good reason to believe, are law abiding citizens of approved integrity, good character, sound judgment and intelligence, and who are not physically or mentally infirm, which list shall be signed and verified by the said commissioners as having been personally selected, as aforesaid, and as possessing the prescribed qualifications according to their best information and belief. Said list shall be forthwith delivered to the clerk of the circuit court and by him recorded in the minute book of the board of county commissioners.'

The remainder of this section is not material here.

We think that the record shows a substantial and fair compliance with the terms of the statute and there was no error committed by the court below in denying the challenge to the array of jurors.

The contention presented by question 4, stated above, is without merit. It is well settled that the conduct and general demeanor of the accused shortly after the commission of a crime which is not merely self-serving may be shown in evidence because the same is relevant, whether a part of the res gestae or not. See 16 C.J. 549, and authorities there cited.

In Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am.St.Rep. 28, the Supreme Court of Alabama held:

'A witness testified that, when he entered defendant's house soon after the killing, 'defendant was perspiring freely, and seemed much excited.' Held, that an objection to the whole of this evidence was too broad, since evidence that defendant was perspiring freely was at least admissible.'

Aside from this, however, if error had been committed in the reception of testimony, it became harmless when defendant took the stand as a witness in his own behalf and testified to such a state of facts as clearly showed him guilty of murder in the first degree. See Chesser v. State, 85 Fla. 151, 95...