Blackwell v. State

• Decision Date: 10 May 1920
• Citation: 86 So. 224,79 Fla. 709
• Parties: BLACKWELL et al. v. STATE.
• Court: Florida Supreme Court

86 So. 224

79 Fla. 709

BLACKWELL et al. v. STATE.

Florida Supreme Court

May 10, 1920

Error to Circuit Court, Bay County; D. J. Jones, Judge.

Will Blackwell and Robert Blackwell were convicted of murder in the first degree and sentenced to death, and they bring error.

Affirmed.

Browne C.J., and Taylor, J., dissenting.

(Syllabus by the Court.)

COUNSEL

J. Ed Stokes, of Panama City, for plaintiffs in error.

Van C Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty Gen., for the State.

OPINION

WILLS Circuit Judge.

Will Blackwell and Robert Blackwell, brothers, were jointly indicted in Okaloosa county, Fla., 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 then went to the Supreme Court on a writ of error and was reversed (see 76 Fla. 124, 79 So. 731, 1 A. L. R. 502) and a new trial awarded.

After the reversal of the case it was transferred to the circuit court of Bay county, Fla., where the defendants were again placed upon trial in the circuit court of Bay county, Fla., for the murder of M. M. Davis, on the 17th day of December, A. D. 1918, and were again convicted of murder in the first degree and sentenced to death, and from this judgment defendants sue out writ of error.

Plaintiff in error contends in the second assignment of error that the court erred in permitting R. A. Rice to act as bailiff for the jury sworn to try the case, without requiring him to take a special oath. The record discloses the fact that the said Rice was a regular appointed deputy sheriff, and that when designated to act as bailiff to the jury he was called up by the judge in the presence of the defendants and their counsel and admonished by the judge as to his duties while in charge of the jury. The record fails to show any improper conduct on the part of said Rice while in charge of said jury, nor is there any intimation by the defendants that there was, and, even if it had been proper that he should have taken an additional oath to the one as deputy sheriff, the failure to take such oath would be harmless error, and no grounds for reversal.

But we do not concede that, where a sheriff or deputy sheriff acts as bailiff, any additional oath is necessary. This court, in the case of Cato v. State, 9 Fla. 163, said:

'It is not indispensable that the jury, in a capital case, should be committed to the charge of a bailiff specially sworn for the occasion. It is sufficient if they be put in charge of the sheriff, or his deputy, who has taken the oath of office.'

Counsel in their brief cite the case of Nicholson v. State, 38 Fla. 99, 20 So. 818. Upon a careful reading of this case we find nothing in conflict with the authority above cited.

Another ground contained in the motion for new trial was that they (defendants) were not properly represented, because their attorneys became intoxicated during the trial. The only evidence relied upon to maintain this ground is the affidavit of the two defendants, and there was a counter affidavit of eight or nine persons, who were present in the courtroom throughout the trial, denying the fact that the attorneys of the defendants were drunk during the trial, or under the influence of liquor. The judge who presided at the trial, and who had continual observation of said attorneys, after considering the affidavit presented at the time of the motion for new trial, overruled the motion for a new trial, which he certainly would have granted, had he believed that the defendants had not had a fair and impartial trial by reason of the intoxication of their lawyers. There is certainly no evidence in the voluminous record brought here of any intoxication or lack of mental activities on the part of defendants' counsel during the trial.

The third assignment of error, as given in the motion for new trial, is as follows:

'If you find that the defendants, at or about the time the charge contained in the indictment was preferred against them, fled to another place, and that such flight was induced by the charge, you may consider such flight in determining the guilt or innocence of the defendants. The flight is a circumstance to be considered by the jury, as tending to increase the probability of the defendants being the guilty persons.'

Counsel contend that under such charge as complained of the natural assumption of the jury would be that it was prima facie evidence of the guilt of the accused, and it might possibly be open to this criticism if that were the entire charge. The charge complained of as erroneous must not be determined on, as to its correctness, by segregated parts, but as a whole. The charge complained of in its entirety meets the contention of counsel against it. The charge in words was as follows:

'If you find that the defendants, at or about the time the charge contained in the indictment was preferred against them, fled to another place, and that such flight was induced by the charge, you may consider such flight in determining termining the guilt or innocence of the defendants. The fact of flight is a circumstance to be considered by the jury, as tending to increase the probability of the defendant being the guilty person. It does not give rise to a legal presumption, but he may rebut any inference which may be drawn from such flight by proper testimony which may tend to explain the same.'

The flight of a person accused of crime raises no presumption of guilt, but is a circumstance that goes to the jury, to be considered by them with all the other testimony and circumstances, and given such weight as the jury may determine it entitled to. The rule is that, when a suspected person in any manner endeavors to escape, or evade a threatened prosecution, by flight, concealment, resistance to a lawful arrest, or other ex post facto indication of a desire to evade prosecution, such fact may be shown in evidence as one of a series of circumstances from which guilt may be inferred. Whart. Crim. Ev. (9th Ed.) § 750, and citations; Carr v. State, 45 Fla. 11, text 16, 34 So. 892.

The fourth and fifth assignments complain of the refusal of the judge to give charges upon circumstantial evidence. From our view of this case the state relied, not only upon circumstances, but upon alleged confessions, and it would not have been error for the judge to have failed or refused to have given any charge upon circumstantial evidence; but the judge did, in the charge given upon his own motion, fully and correctly give in charge the law of circumstantial evidence, and it was not error to refuse additional charges, when the substance of such requested charges had already been given.

'It is not error to refuse to give instructions that have already been given substantially, though couched in different language.' Higginbotham v. State, 42 Fla. 573, 29 So. 410, 89 Am. St. Rep. 237.

The sixth assignment of error is that the court erred in refusing to give the following charge, requested by the defendants:

'Gentlemen of the jury, this has been and is a very notorious case, and there has been more or less excitement over it, and that feeling may possibly have crept into the trial to some extent. I am not saying that it has, but for fear that it has, and in an abundance of caution, that nothing but justice may be done, I deem it my duty to instruct you and caution you against convicting the defendants, or either or them, through prejudice of witness who may have testified in this case, or upon insufficient evidence, and to caution you that in your deliberations you should not be influenced one whit by what is commonly called public sentiment, nor should you be influenced by any act or actions of any officer or officers, if there be such act or acts, that appear to be hostile to the defendants, or either of them. In other words, you must consider the evidence that has been given you on the witness stand, and that alone, in arriving at your verdict.'

The court of its own motion had given the following charge:

'A fair and impartial trial is absolutely essential to the due and proper administration of justice, and it is of prime importance that this truth be constantly borne in mind both by courts and juries. If the courts are to retain the respect and the confidence of the people, and properly perform the important duties and exercise the great powers invested in them by the Constitution, in accordance with its spirit and purpose, and carry out and perform the objects of their creation, they must obey the constitutional command respecting fair and impartial trials, and give to every case submitted to them for decision due, careful, and conscientious consideration, basing their judgment upon sworn, legal, and credible evidence, uninfluenced by other extraneous considerations. In the administration of justice, juries are intrusted with functions of supreme importance. They consider and weigh the evidence submitted, betermine the credibility of witnesses, and find from the evidence the facts upon which the court passes its judgment. In deliberating upon and endeavoring to reach a correct and conscientious verdict, the jurors are required by the law to be guided by the sworn evidence in the case, to calmly and dispassionately weigh and consider it, uninfluenced by any impression or opinions respecting the guilt

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