Baugus v. State

• Decision Date: 09 May 1962
• Docket Number: No. 31487,31487
• Citation: 141 So.2d 264
• Parties: Leland Roy BAUGUS; Nicholas Joseph Sikalis, also known as Joseph Patrick Hayes, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 264

141 So.2d 264

Leland Roy BAUGUS; Nicholas Joseph Sikalis, also known as Joseph Patrick Hayes, Appellants, v. The STATE of Florida, Appellee.

No. 31487.

Supreme Court of Florida.

May 9, 1962.

Rehearing Denied June 5, 1962.

Jos. P. Manners and Harry Willis, Miami, for appellants.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

THOMAS, Justice.

Again we face the awful responsibility of determining whether or not a judgment of guilty and consequent sentence to death should receive the imprimatur of this court. It seems fitting, at the outset to observe that no challenge of the sufficiency of the evidence to support the basic finding of guilt has been presented by appellants either in the brief lodged with this court, or in the oral argument which the court has heard unhurriedly. On the contrary the appellants through their counsel take the position that the proof of guilt was overwhelming.

Even so we have, in adherence to the duty placed on us by Section 924.32, Florida Statutes 1959, F.S.A., reviewed the evidence to determine if the interests of justice require a new trial though the insufficiency of the evidence is not made a ground of appeal.

A study of the evidence and, for that matter the entire record, leads unfailingly to the conviction that the appellants deliberately and designedly killed a man to take his purse.

The facts are comparatively simple. Appellant Baugus, age 18, and his 16-year old wife went to Miami evidently on an idle excursion. There they came in contact with appellant Sikalis, also known as Hayes, who with his mistress was sojourning in Miami. The parties had known one another before. A session at a dog track depleted the finances of the four and in their necessity they decided to 'roll' someone whom they would undertake to locate in a bar and lure to a secluded spot.

It was first planned that the mistress, who was the older of the women, would go to a barroom, toll a male customer into an alley where Baugus, lying in wait, would assault him and take his money to replenish the group's funds. Bar and alley were selected but the plan failed when the woman either acquired a 'mickey finn' or went down the wrong alley, or both. Then Baugus and the woman and Sikalis, who seems to have been the master planner and who had been hovering nearby, returned to the hotel room to get a fresh start.

It was ultimately decided that the younger woman would act as the decoy so she donned the dress of the older woman and she and the two men set out for the nearby bar and alley. While Sikalis hung about and Baugus waited to assault the victim, the young wife found a seat on a stool in the bar next to one occupied by one Rudi Plauck whom she soon lured into the darkened alleyway. Baugus descended on him, beat him about the head with a club 17 inches long and one and one-half inches thick, searched his pockets and withdrew to the street. When he rejoined his wife and told her how much money he had got, she said Plauck had more than that so he returned to the alley where Plauck was on his knees in an attempt to stand. Thereupon Baugus administered the coup de grace, took the rest of the man's money, returned to his wife and Sikalis, and all went to the hotel room where the loot was divided. Several hours later Plauck succumbed to his wounds.

That, in our view, was a classic example of murder in the first degree. So the jury found, and the judge, too, when he entered the judgment and pronounced the sentence.

We have already said that a careful examination of the record does not indicate that the ends of justice require a new trial bearing in mind the stark facts we have just outlined.

But the appellants contend that in the process of the trial things occurred which could well have justified the jury in recommending mercy and thereby automatically reducing the penalty to life imprisonment.

It is difficult to relate the points raised or the rulings on which they are based to the contention that although the appellants were shown to be guilty of murder committed during a robbery they were nonetheless entitled to mercy at the hands of the jury because that feature of the case is so nebulous as to be incapable of definition. The judge charged the jury simply, and quite properly, that in the event either, or both, of the defendants should be found guilty of murder in the first degree, a majority of the jurors could recommend mercy in which case the penalty would be life imprisonment instead of electrocution. The statute on the subject is no more explicit or helpful than that. It provides, Sec. 919.23, Florida Statutes 1959, F.S.A., that one found guilty of a capital offense and recommended to mercy by a majority of the jury shall be sentenced to imprisonment for life. That is all. So the matter of reduction of the sentence by vote of the jury is one to be determined purely by the dictates of the consciences of the individual jurors. We would hesitate to determine from the cold type of the record whether or not the state of the consciences of the jurors was such that a recommendation of mercy should have followed the verdict of guilty because, as we said in Bennett v. Jacksonville Expressway Authority, Fla., 131 So.2d 740, conscience is the "ideas and feelings within a person * * *, [his] consciousness; inmost thought [and] mind * * *." But there is no occasion to pursue this aspect further since this court is empowered only to reduce the degree of an offense under Sec. 924.34, Florida Statutes 1959, F.S.A., and the immediate question is not one involving degree of the crime but only degree of punishment in accordance with a recommendation of seven jurors as distinguished from a verdict of twelve.

We, therefore, approach the questions posed by the appellants who urge that answers favorable to them should result in a new trial at which, presumably, they could obtain a verdict at least carrying with it the coverted recommendation.

First, we are entreated to disapprove the judge's denial of appellants' motion to have made and delivered to them a transcript of all the testimony taken at the preliminary hearing. They insist that such should have been made available because of the provisions of Section 1 of the Declaration of Rights of the Florida Constitution, F.S.A., securing to all men the inalienable right to defend life and liberty, and Section 12 guaranteeing that 'no person shall be * * * deprived of life, liberty * * * without due process of law.'

To begin, the procedure of hearing a case preliminarily is not a step in due process of law, is not a prerequisite to a criminal prosecution or the filing of an indictment. It serves only to determine whether or not probable cause exists to hold a person for trial, Rouse v. State, 44 Fla. 148, 32 So. 784; Di Bona v. State, Fla.App., 121 So.2d 192, and a prosecution may be instituted and maintained regardless of such an investigation.

The statute on the subject, Sec. 902.11, Florida Statutes 1959, F.S.A., can offer no comfort to the appellants. It was plainly designed to give the State no advantage by possessing the transcript of testimony adduced at a preliminary hearing when the defendant had none but it cannot be construed as securing such a record to a defendant unless the State has had the transcript made. It provides that upon request of the prosecuting officer the testimony 'shall either be reduced to writing by the magistrate, or under his direction, or * * * taken in shorthand * * * and transcribed.' And if it is reduced to writing at the prosecutor's request, a copy must be furnished to the defendant without charge.

In this case no such request was made so the transcript was not put in the hands of the prosecutor to the defendants' disadvantage. Doubtless the defendants could have secured the transcript by paying the cost, but there was no obligation on the part of the State to have it prepared...