Adams v. State

• Decision Date: 23 November 1891
• Citation: 28 Fla. 511,10 So. 106
• Parties: ADAMS v. STATE.
• Court: Florida Supreme Court

10 So. 106

28 Fla. 511

ADAMS v. STATE.

Florida Supreme Court

November 23, 1891

Error to circuit court, Columbia county; JOHN F. WHITE, Judge. Reversed.

Indictment of William Adams for murder. From a conviction of murder in the first degree defendant brings error.

Syllabus by the Court

SYLLABUS

1. In an indictment for murder it is essentially necessary to set forth particularly the manner of the death and the means by which it was effected; but in stating the facts which constitute the offense no technical terms are required, and an averment of the manner and means by which the deceased came to his death, in concise and ordinary language, and in such a way as to enable a person of common understanding to know what was intended, is sufficient.

2. It is within the discretion of the trial court to allow a plea of not guilty to be withdrawn for the purpose of pleading in abatement.

3. A plea in abatement alleging that two members of the grand jury that found an indictment against an accused were not legally registered voters, and that the illegality of their registration consists in the fact that they were not registered within the time prescribed by the general election law, but were registered, or their names placed upon the registration books, within the time prescribed by chapter 3577, Laws Fla., being an act to provide for the election of delegates to the constitutional convention held in 1885 held, that the plea is not good, for the reason that persons duly registered under said act were as duly-registered voters of the county as those who registered under the general election laws.

4. An application for a change of venue is addressed to the sound discretion of the court, and its ruling refusing the change will not be disturbed, unless it appear from the facts presented that the court acted unfairly, and abused a sound discretion.

5. The refusal of the court to grant a change of venue, where the application is based upon the grounds that a fair and impartial trial cannot be had in a county, and that the accused is odious to the inhabitants thereof, and supported by the uncorroborated affidavit of the accused, although the facts therein stated, if true, are sufficient to require the change, will not be reversed on writ of error, in the absence of anything to show that the decision of the court was not based upon the insufficiency of the proof of the facts alleged in the affidavit, and that the accused was not prevented from getting corroborative evidence by hostile public sentiment.

6. A party has no right to cross-examine a witness, except as to facts and circumstances connected with the matters stated in his direct examination; and if he wishes to examine the witness as to other matters he must do so by making the witness his own.

7. An accomplice, jointly indicted, and as to whom the indictment has not been disposed of, can testify on behalf of the state against his codefendant on a separate trial; and in such case the wife of the accomplice is a competent witness for the state.

8. A map, diagram, or picture, whether made by the hand of man or by photography, verified as a correct representation of physical objects about which testimony is offered, and which does not contain thereon indications of matters and things in question before the jury, and not a part of the physical objects when the map, diagram, or picture was made, is admissible in evidence for the use of witnesses is explaining their evidence, and to enable the jury to better understand the case.

9. Under the defense of an alibi it is sufficient if there is enough evidence to produce in the minds of the jury a reasonable doubt as to the presence of the prisoner at the scene of the killing. The evidence of an alibi need not make it impossible for the prisoner to be present at the killing nor is it required that such evidence be absolutely clear but it is sufficient if it raises a reasonable doubt in the mind of the jury, from all the circumstances of the case whether or not the accused was present at the killing.

10. It is the province of the court to pass upon the admissibility of the evidence, but, when admitted, its credibility and weight are questions for the jury. The trial judge, under our system, is prohibited from intimating to the jury his views as to the effect, weight, or credibility of any testimony before him.

11. A charge to the jury that, 'when proof of an alibi is attempted, and proven to the satisfaction of the jury, it is conclusive of the case. When it is attempted, and the proof to sustain it is not satisfactory, the failure to prove it satisfactorily is a circumstance unfavorable to the defendant, but it is no more so than an attempt to clear himself by any other false or fabricated testimony,'--held to be erroneous.

12. It is not proper for a trial judge to state in his charge to the jury the facts of a case de cided by our supreme court, and then submit to them the question whether or not that case and the one under consideration are parallel. Such a course would not be giving the law of the case, but would leave the jury to form notions of the law by a comparison of the two cases.

13. Under an indictment for murder in the first degree, the question of premeditation is one of fact, to be ascertained by the jury from the facts and circumstances of the case. The law does not presume malice or premeditation from the fact of killing, but such state of mind is to be ascertained by the jury from the circumstances surrounding the killing.

14. In a capital case the prisoner must be present during the trial, and no steps can be taken by the court in his absence.

COUNSEL

B. B. Black well and A. J. Henry, for plaintiff in error.

OPINION

MABRY J.

William Adams, the plaintiff in error, Ike Spanish and T. P. Bethea, were jointly indicted on the 26th day of February, A. D. 1891, at a term of the circuit court for Columbia county, Fla., for the murder of James Moore. Adams was indicted as principal in the first degree, Spanish as principal in the second degree, and Bethea as accessory before the fact.

It is charged in the indictment (the formal parts omitted) 'that William Adams, Ike Spanish, and T. P. Bethea, late of said county, laborers, on the 19th day of January, A. D. 1891, at and in the county, circuit, and state aforesaid, with force and arms did then and there unlawfully, feloniously, and of their malice aforethought, and from a premeditated design to effect the death of a human being, make an assault upon one James Moore. And the said William Adams, with a certain double-barrel shotgun, then and there loaded with gunpowder and leaden balls, commonly called 'buckshot,' and by him, the said William Adams, then and there had and held in his two hands, did then and there unlawfully, feloniously, and of his malice aforethought, and from a premeditated design to effect the death of him, the said James Moore, shoot off and discharge at, to, against, and upon the body of him, the said James Moore, thereby and by thus striking the body of him, the said James Moore, with the said leaden bullets, commonly called 'buckshot,' so shot off and discharged out of the double-barrel shotgun aforesaid, unlawfully, feloniously, and of his malice aforethought, and from a premeditated design to effect the death of him, the said James Moore, inflicted then and there in and upon the chest and belly of him, the said James Moore, three mortal wounds, each of the depth of six inches and of the breadth of one-quarter of an inch, of which said mortal wounds the said James Moore then and there instantly died.

'And the jurors aforesaid, upon their oaths aforesaid, do further say that the said Ike Spanish then and there unlawfully and feloniously, and of his malice aforethought, and from a premeditated design to effect the death of the said James Moore, was then and there present, aiding, abetting, helping, comforting, assisting, and maintaining the said William Adams, the murder of him, the said James Moore, in manner and form aforesaid, to do and commit.

'And the jurors aforesaid, upon their oaths aforesaid, do further say that the said T. P. Bethea did then and there unlawfully, feloniously, and of his malice aforethought, and from a premeditated design to effect the death of him, the said James Moore, incite, move, aid, counsel, hire, abet, assist, procure, and command the said William Adams, the murder of him, the said James Moore, as aforesaid, in manner and form aforesaid, to do and commit.

'And so the jurors aforesaid, upon their oaths aforesaid, do say that the said William Adams, Ike Spanish, and T. P. Bethea, the said James Moore, then and there, in manner aforesaid, and by the means aforesaid, unlawfully, feloniously, and of their malice aforethought, and from a premeditated design to effect the death of him, the said James Moore, him, the said James Moore, then and there did kill and murder, against the peace and dignity of the state of Florida, and contrary to the form of the statute in such cases made and provided.'

Adams and Spanish were in custody when the indictment was presented in court, and, so far as the record shows, Bethea has not been arrested.

On motion of the state a severance was granted, and William Adams, the plaintiff in error, after arraignment and plea, was tried and convicted of murder in the first degree. Motions in arrest of judgment and for a new trial were overruled, and by judgment of the court the sentence of death was passed upon this accused. From this judgment a writ of error was taken to this court.

The first and second assignments of error call in question the sufficiency of the indictment, are in substance the same, and will be considered together. Before arraignment...