Acree v. State

• Decision Date: 08 October 1943
• Citation: 153 Fla. 561,15 So.2d 262
• Parties: ACREE v. STATE.
• Court: Florida Supreme Court

15 So.2d 262

153 Fla. 561

ACREE v. STATE.

Florida Supreme Court

October 8, 1943

Appeal from Circuit Court, Levy County; A. Z. Adkins Judge.

W. F Anderson, of Bronson, for appellant.

J. Tom Watson, Atty. Gen., Woodrow M. Melvin, of Tallahassee, and T E. Duncan, State's Atty., of Gainesville, for appellee.

CHAPMAN, Justice.

The record in this case discloses that Perry Acree, the appellant, was adjudged insane and admitted as a patient to the Florida State Hospital for the Insane at Chattahoochee, Florida, on June 15, 1934, and there diagnosed as 'chronic alcoholism suicidal and homicidal tendences and dementia praecox'. Acree, on December 30, 1936, was discharged from the hospital. He was readmitted to the hospital on April 9, 1937 and by the medical staff of the State Hospital diagnosed viz.: 'It is the concensus of opinion that he (Acree) is a constitutional psychopath, chronic alcoholic, high grade moron, and a potential criminal.' On October 24, 1939, he was discharged from the hospital and readmitted on the former commitment May 12, 1941, and on Sunday, July 12, 1942, Perry Acree and Harry Marshall Heavener escaped from the hospital, and on the afternoon of July 16, 1942, K. D. Shores was robbed and killed near Morriston, in Levy County, Florida. Subsequently the appellant was found in possession of some of the deceased's clothing, money taken from his person and Shores' automobile.

On October 19, 1942, Perry Acree and Harry Marshall Heavener were by a grand jury of Levy County, Florida, indicted for the murder of K. D. Shores in Levy County, on July 16, 1942. The first count of the indictment charged Perry Acree and Harry Marshall Heavener as principals, while the second count charged Perry Acree as principal and Harry Marshall Heavener as an accessory. Counsel for Perry Acree, on October 20, 1942, prior to his arraignment, by petition, under the provisions of Sections 917.01, 917.02 and 917.03, Fla.Stats.1941, F.S.A., made known to the trial court the adjudication of insanity of Perry Acree and his probable insanity on October 20, 1942. It was suggested that the mental condition of Perry Acree, at the time, was such that he could not assist his counsel during the trial of the cause. Neither could he plead to the indictment then pending against him. An order was sought fixing a time and place of hearing when the State of Florida and the defendant Acree could adduce witnesses and documentary evidence touching the present sanity of Acree and his mental and physical ability to co-operate and assist counsel in the preparation and trial under the indictment pending him. The trial court granted the petition and by appropriate order directed the issuance of subpoenas ad testificandum to Drs. W. H. Spires and E. E. Pate, disinterested qualified experts on insanity, and other witnesses requested, returnable October 26, 1942, at Bronson, Florida, the date set for the hearing.

A hearing was had by the trial court pursuant to the previous order made and the parties were represented by counsel. Drs. Spires and Pate and Mrs. Katie Acree appeared and testified--were examined and cross-examined by counsel, and the trial court, after hearing all the testimony, held that Perry Acree was then sane, understood the nature and seriousness of the offense charged against him; that he was mentally and physically able to assist his counsel during the progress of the trial.

On October 27, 1942, after the sanity inquisition, Perry Acree and Harry Marshall Heavener were each arraigned by the State on the indictment charging each of them with the crime of murder in the first degree. Perry Acree at the time was represented by counsel and entered a plea of not guilty to each count of the indictment, while Harry Marshall Heavener tendered a plea of guilty to the second count of the indictment and the same were accepted by the State of Florida. The trial court granted severance, and Perry Acree, on October 27, 1942, was placed upon trial in the Circuit Court of Levy County, and a jury, after hearing the testimony, argument of counsel and charge of the court, returned a verdict of murder in the first degree. A motion for a new trial was made, heard and denied, and Perry Acree by the trial court was sentenced to death by electrocution. From this sentence and judgment an appeal has been perfected to this court. Six questions are posed by counsel for appellant for adjudication in this court.

The testimony, on which the trial court predicated his order and holding is in effect that Perry Acree was then sane; that he then appreciated the seriousness of the charges pending against him; that he at the time was qualified to plead to the indictment charging him with murder in the first degree; that he was mentally qualified and able to assist counsel in the trial of his cause, has been certified to this court. Although counsel for the appellant does not here challenge this order, it is likely that the trial court and counsel followed our recent utterances in Stanton v. State, 148 Fla. 732, 5 So.2d 4. On October 27, 1942, the date set for the trial of the cause, counsel for the appellant filed a sworn motion for a continuance of the trial of the case until the next regular or special term of court, because of the absence of Mrs. E. D. Keel, a material and necessary witness for the defendant who was a resident of Plant City, Florida, and possibly ill and not physically able to attend the trial at the time set but probably could at a subsequent date if the trial was postponed. Counsel for defendant caused a subpoena to issue for the absent witness on October 22, 1942, and mailed to the Sheriff of Hillsborough County, Florida, for service. The movant had not talked with the absent witness but defendant Acree had talked with her, but counsel had not had an opportunity to discuss with the absent witness her proposed testimony, but understood from consultation with Acree that she would testify to the 'acts and doings' of Acree for many years prior to his commitment to the State Hospital for the Insane as a patient, and also his acts, demeanor and conduct during the periods of time when away from the hospital. The absent witness is an aunt of the appellant. The motion was defective in many ways. It was not executed in accordance with Section 198 of the Criminal Procedure Act, section 916.04, Fla.Stats.1941, F.S.A.; it contained no statement about the legal residence of the absent witness or that the witness could not be found; no facts were given 'showing that the applicant (expected) to be able to procure the attendance of the witness at a specified time'; there was no statement that the witness was not absent because of the direct or indirect connivance of the applicant; there was no averment that injustice to applicant would result if the trial proceeded without the witness; there was no allegation that the witness was within or without the jurisdiction of the court; and there was no statement that the witness would appear not later than the next term, or that her deposition would be taken. Section 199, Criminal Procedure Act, Section 916.05, Fla.Stats.1941, F.S.A.

The law or controlling rule applicable to a continuance in a criminal case is well established by this court even prior to the enactment of the Criminal Code. See Gladden v. State, 12 Fla. 562; Ballard v. State, 31 Fla. 266, 12 So. 865; Pittman v. State, 51 Fla. 94, 41 So. 385, 8 L.R.A.,N.S., 509; Moore v. State, 59 Fla. 23, 52 So. 971; Landrum v. State, 79 Fla. 189, 84 So. 535; Sanford v. State, 90 Fla. 337, 106 So. 406, and many other cases. Section 199 of the Criminal Code--Section 916.05, Fla.Stats.1941--enumerates the several formal requirements of an application for a continuance of a criminal case on the ground of an absent and necessary witness.

In both criminal and civil cases it is settled law that an application for a continuance is addressed to the sound discretion of the trial court and the denial thereof will not be reversed unless it clearly appears that there has been a palpable abuse of this judicial discretion. Motions for continuance in criminal cases are to be more closely scanned or examined by the trial court than in civil cases because of the greater temptation to delay. It cannot be accurately contended that Section 916.05, Fla.Stats.1941, has modified or materially altered the established rule applicable to continuances in criminal cases. The motion for a continuance in the case at bar fails to conform to the established rule and appellant and counsel failed to carry the burden cast on them by law in clearly showing an abuse of discretion on the part of the trial court in overruling and denying the motion for a continuance of the cause.

On October 27, 1942, after the trial court had entered an order overruling and denying the motion of the defendant for a continuance of the cause until the next regular or special term of the court, proposed jurors were then called into the box and sworn on their voir dire. It appears from the record that counsel engaged in the trial had about agreed upon the panel and the swearing of the jury requested, when a proposed juror admitted that he had a fixed opinion as to the guilt or innocence of the defendant and this fact was brought to the attention of the trial court. The court ordered that the proposed juror stand aside and another was called in his place. It is here contended that this ruling constitutes reversible error.

A broad discretion is vested in the trial court in determining the qualification of a juror. The objective of such a proceeding is a fair and impartial trial according to law and a prejudiced juror necessarily would be an unfit and improper person to render an impartial verdict. It has not been made to...