188 So. 634 (Fla. 1939), Baker v. State

Citation:188 So. 634, 137 Fla. 27
Opinion Judge:THOMAS, Justice.
Party Name:BAKER v. STATE.
Attorney:[137 Fla. 27]John E. Mathews, of Jacksonville, for plaintiff in error. George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for the State.
Case Date:March 14, 1939
Court:Supreme Court of Florida
 
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Page 634

188 So. 634 (Fla. 1939)

137 Fla. 27

BAKER

v.

STATE.

Florida Supreme Court, Division A.

March 14, 1939

Rehearing Denied April 11, 1939.

Error to Circuit Court, Duval County; Bayard B. Shields, Judge.

James Baker was convicted of murder in the first degree, and he brings error.

Affirmed.

BROWN, J., dissenting in part.

COUNSEL [137 Fla. 27]John E. Mathews, of Jacksonville, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for the State.

OPINION

THOMAS, Justice.

The plaintiff in error was covicted of murder in the first degree under an indictment charging him with having been present, aiding and abetting one Alvin Tyler to kill John H. Surrency.

The sole question for decision is whether the verdict of the jury was supported by the evidence and was consistent with the charge of the court.

We have read the testimony of the witnesses for the State and of the defendant, himself, and are convinced that the conclusion of the jury was fair and amply supported by the facts. The robbery was deliberately planned and as deliberately executed.

It was known by the conspirators that the deceased [137 Fla. 28] would, on a certain day, return from the bank bearing a considerable sum of money, and they were aware also of the route he would take. Arrangements were made for the use of a car belonging to an innocent party to divert suspicion from the participants. The defendant and Tyler, at the appointed time, succeeded in blocking a narrow road by parking their automobile diagonally. When the victim drew up behind them, Tyler went back to the car occupied by Surrency, killed him and wounded his wife.

The defendant meanwhile sat under the steering wheel of the borrowed automobile, and, when Tyler had carried out his murderous design, drove him to a third conspirator who spirited both away from the vicinity.

Counsel has laid great stress on the testimony of the defendant that immediately prior to the homicide he abandoned the plan and refused to play the part of 'stick up man', originally intended for him. This position is not well founded. He had many opportunities to withdraw and his persistence is evidenced by the fact that when he left the scene the one who actually fired departed with him. See Smith v. State, 129 Fla. 388, 176 So. 506.

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