Blackwell v. State
| Decision Date | 27 July 1918 |
| Citation | 76 Fla. 124,79 So. 731 |
| Parties | BLACKWELL et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Okaloosa County; A. G. Campbell, Judge.
Will Blackwell and another were convicted of murder, and they bring error. Reversed.
Additional Syllabus by Editorial Staff
Syllabus by the Court
Where it is alleged, in an affidavit of the defendant in a criminal case, in support of a motion for a change of venue, that the defendant is odious to the people of the county, that the prejudice against him is very great, and that a fund had been subscribed to by the citizens of the county, and collected by a deputy sheriff, to employ additional counsel to assist in the prosecution of the defendant, and where two of the attorneys for the defense swear that, on account of the vast and powerful influence of the sheriff, the people of the county were greatly prejudiced against the defendants, and that the sheriff had proclaimed his belief in the guilt of the prisoners, and thereby caused the people generally to hate and despise the defendants, and believe them guilty, and these allegations are not traversed by the state, it was reversible error to refuse to grant a change of venue.
Where an application for a change of venue is based on the prejudice of the judge against the defendants, no discretion is vested in the judge to hear and determine the question of whether or not he is prejudiced.
Where it is alleged, in an affidavit in support of a motion for change of venue on the grounds of the prejudice of the judge against the defendant, that the judge 'yielded to public clamor,' and called a special term of the court a short time before the regular term of the court would convene, and that in doing this he acted 'solely at the behest of public sentiment,' and that he did this without any other and further reason than that the it was reversible error to refuse the motion.
Remarks made by counsel in the presence of the jury, which would naturally tend to influence their minds to the prejudice of the defendants, when called to the attention of the court should be stricken from the record, and the jury admonished that they should give no consideration to such remarks, and the refusal of the court to do so is reversible error.
It is improper for counsel, in his argument to the jury, to say 'If there is any error committed in this case, the Supreme Court, over in the capital of our state, is there to correct it, if any error should be done,' as the effect of this would be to cause the jury to lessen their estimate of the weight of their responsibility, and the refusal of the court to strike the same from the consideration of the jury is reversible error.
Language used by counsel in his argument to the jury, tending to influence them to shift the burden of their responsibility from themselves to the Supreme Court, is improper, and when called to the attention of the trial judge should be stricken from the consideration of the jury, and the refusal to do so is reversible error.
Remarks made by counsel in his argument before the jury, prejudicial to the defendants and concerning matters which are not proper for the jury to consider when they retire to deliberate upon their verdict, should be stricken by the trial judge, and the refusal to do so, when brought to his attention, is reversible error.
One who contributes to a fund to employ an attorney to assist in the prosecution of a person charged with an offense is disqualified to sit as a juror on his trial for such offense.
COUNSEL H. S. Laird, of Pensacola, L. W. Nelson, of St. Augustine, W. W. Clark, of Milton, and W. J. Rice, of Crestview, for plaintiffs in error.
Van C. Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
Will Blackwell and Robert Blackwell, brothers, were jointly indicted in Okaloosa county in two separate indictments for the murder of M. M. Davis and his wife, Nancy Davis, and on May 7, 1917, were put upon trial under the indictment charging them with the murder of Nancy Davis. During the course of the trial the defendant Will Blackwell escaped from custody, thereby necessitating an order of mistrial. After a lapse of about three weeks he was recaptured, and on July 2, 1917, the defendants were placed on trial for the murder of M. M. Davis, were convicted of murder in the first degree, and sentenced to death. The case comes here for review on writ of error.
There are 23 assignments of error, some of which have been abandoned, and others it will not be necessary for us to consider. The second assignment is that the court erred in denying defendants' motion for a change of venue. The grounds of the motion for a change of venue are as follows:
Both the defendants made affidavits in support of the motion, and Mr. Laird and Mr. Rice, attorneys for the defendants, swore that the crime charged, the unprovoked and deliberate murder of a very old man and his aged wife, was of such heinous nature that the citizenship of the county must necessarily be wrought up to a frenzy and great anger towards any one so unfortunate as to be charged with it; that the defendants were confined in jail in Pensacola, and were not brought into the county in which they were to be tried until 9 o'clock in the morning of the day when the motion was made; that after the prisoners were brought into court, and arraigned, the attorneys for the defense were given 15 minutes to inspect the indictment and confer about the case; that after the presentation of their motion for a change of venue they were given until 2 p. m. of the same day in which to prepare affidavits in support of their motion; that the defendants during that time were handcuffed together and closely guarded, so that they nor either of them could talk with any one about the case; that they had no kinsfolk or friends to go out and see any one and get affidavits for them. These attorneys, officers of the court, also swore that to their certain knowledge the sheriff of the county was a very popular man, of vast and wonderful influence, who had publicly proclaimed on many different occasions that the defendants were guilty, and in this way he had exercised a wonderful and undue influence over the minds of the mass of the citizens of the county, and had aided in causing the people generally in the county to hate and despise the defendants and believe them guilty. They also swore that they believed that, if they were given a reasonable time to go out and see the people and talk with them, they could secure a very large percentage of reputable citizens of the county to make affidavits to the same effect as their affidavits. Against these specific allegations of fact the state produced an affidavit by the clerk of the circuit court, who stated that he had talked with the people residing in almost every section of Okaloosa county, and that in his opinion the defendants could receive a fair and impartial trial in that county. Mr. J. H. Richburg and Mr. Sutton, the sheriff, in their affidavits stated that in their opinions the defendants could get a fair and impartial trial in the county. Mr. Sutton did not deny the allegations in the affidavits of Mr. Laird and Mr. Rice as to his great influence in the community, or that he had proclaimed in all parts of the county his belief in the guilt of the prisoners, and that his attitude towards them had aided in causing the people generally in the county to hate and despise the defendants and believe them guilty.
The allegations in the affidavit of the defendants that they were odious to the people of Okaloosa county, that the prejudice against them was very great, that a fund had been subscribed to by the citizens of the county and collected by one Moore, a deputy sheriff, to employ additional counsel to assist the state attorney to prosecute the defendants, and the allegations in the affidavits of Mr. Laird and Mr. Rice that, on account of the vast and wonderful influence of the sheriff, the people of the county were greatly prejudiced against the defendants, and that the sheriff, by proclaiming his belief in the guilt of the prisoners, had caused the people generally to hate and despise the defendants and believe them guilty, were not traversed by the state, and the only thing before the court against these very strong and positive declarations, showing such prejudice as would preclude their obtaining a fair and impartial trial in the county, were the statements of three persons that in their opinion the prisoners could get a fair and impartial trial in the county.
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