Brown v. State

• Decision Date: 15 November 1938
• Citation: 184 So. 518,135 Fla. 30
• Parties: BROWN v. STATE.
• Court: Florida Supreme Court

184 So. 518

135 Fla. 30

BROWN v. STATE.

Florida Supreme Court, Division B.

November 15, 1938

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Tommie Lee Brown was convicted of murder in the first degree, and he brings error.

Affirmed.

COUNSEL Edgar C. Thompson, Harry Dietz, and H. J Quincey, all of West Palm Beach, for plaintiff in error.

Cary D. Landis, Atty. Gen., and Tyrus A. Norwood Asst. Atty. Gen., for the State.

OPINION

CHAPMAN Justice.

On the 3rd day of February, 1937, a jury of Palm Beach County Florida, filed its verdict in the Circuit Court of Palm Beach County, Florida, finding Tommie Lee Brown guilty of murder in the first degree. Plaintiff in Error was charged in an indictment rendered by a grand jury of said County with the unlawful killing of one Fred Holland in the County aforesaid on the 12th day of December, 1936. On February 19, 1937, plaintiff in error, Tommie Lee Brown, for said crime was by the Circuit Court of Palm Beach County, Florida, sentenced to be electrocuted. From this death sentence or judgment writ of error was taken, transcript of record perfected, and briefs filed on the part of counsel for plaintiff in error and the State of Florida, and several legal reasons are presented and argued seeking a reversal of the said judgment of conviction. The parties in this opinion will be referred to as the state and defendant, as they appeared in the Court below.

On January 13, 1937, defendant filed a plea in abatement in which it was alleged that J. W. Salisbury was not the State Attorney for the Fifteenth Judicial Circuit and that his name appearing on the indictment as the prosecuting officer therefore rendered the indictment void. The material portions of the plea in abatement are, viz:

'That said indictment is signed by one J. W. Salisbury as State Attorney of the Fifteenth Judicial Circuit of the State of Florida; that the Court judicially knows that said J. W. Salisbury is not the State Attorney for said Circuit but that one Louis Maier is the duly appointed, commissioned and qualified State Attorney for said Circuit; that the said J. W. Salisbury holds a commission, dated May 22, 1933, for four (4) years, as State Attorney of the Fifteenth Judicial Circuit created pursuant to Section 35, Article 5, Constitution of Florida, and none other; that Louis E. Maier, Esq., held a commission, dated July 2, 1931, for four (4) years, as State Attorney of the Twenty-Second Judicial Circuit, created pursuant to Section 35, Article 5, Constitution of Florida, and now holds a commission, dated June 26, 1935, for four (4) years as State Attorney of the Fifteenth Judicial Circuit created pursuant to Section 45, Article 5, Constitution of Florida; that the said Louis F. Maier, and not the said J. W. Salisbury is now the State Attorney and Prosecuting officer of this Court; that there is hereto attached certified copies of each of the above mentioned commissions, and made a part hereof, the same as if set forth herein in haec verba.

'Wherefore defendant prays that the action against him be abated and that he be discharged.'

The commissions of the Honorables J. W. Salisbury and Louis E. Maier are attached and by appropriate allegations made a part of the said plea in abatement. The State of Florida, by the State Attorney, directed a demurrer to the plea in abatement, the grounds of which are (a) the plea in abatement fails to set forth a defense; (b) the plea on its face shows that J. W. Salisbury is the qualified acting State Attorney; (c) the plea is vague, indefinite and uncertain. The demurrer was by the lower court sustained and this ruling is assigned as error. The record shows that on June 20, 1933, the Hon. J. W. Salisbury was appointed State Attorney for the Fifteenth Judicial Circuit of the State of Florida for a period of four years from and after June 20, 1933. The indictment here signed by J. W. Salisbury, State Attorney of the Fifteenth Judicial Circuit, was filed in Palm Beach County, Florida, on the 7th day of January, A. D. 1937, and when filed the period of four years for which the State Attorney was commissioned had not expired and would not expire until June 20, 1937. We hold that this assignment is without merit. See Section 45 of Article 5 of the Constitution of Florida adopted in November, 1934; Chapter 17085, Acts of 1935, Laws of Florida; State ex rel. Landis v. Bird and Viney, 120 Fla. 780, 163 So. 248.

It is next contended that the lower court erred in overruling and denying the defendant's motion to quash the indictment on the grounds, to-wit: (a) That the wound inflicted on the deceased was not done with a premeditated design to effect his death; (b) the venue of the place of inflicting the alleged mortal wound is not alleged; (c) the indictment fails to allege facts constituting murder; (d) that J. W. Salisbury is not the legal prosecuting officer of said court, but that Louis Maier is and the indictment fails to have his name attached thereto. The test of the sufficiency of an indictment under the law of Florida is whether or not it is so vague, inconsistent and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. See Lamb v. State, 90 Fla. 844, 107 So. 530; Ward v. State, 83 Fla. 311, 91 So. 189. We fail to find error on the part of the lower court in denying the motion to quash.

It is next contended that the lower court erred in admitting into evidence for the consideration of the jury, over the defendant's objection, a confession freely and voluntarily made without fear of punishment or hope of reward. The confession assigned as error is:

'Mr. Salisbury: If your Honor please, I want to read this confession to the jury.

"Following is the deposition of Tommie Lee Brown taken at 12:10 A. M. on the 14 day of December 1936 in the office of Hiram W Lawrence, Sheriff of Palm Beach County, Florida.

"By Sheriff Lawrence: Q. Tommie, this is an investigation in the death of Fred Holland. Do you feel like making a statement on your own free will without any promises of leniency? A. Yes sir. Q. Free and voluntarily you want to make a statement? A. Yes sir. Q. Do you swear this to be the truth? A. Yes sir. Q. In the presence of D. T. Sholtz, Tommy Stears, Mr. Charles Francis Coe, Mr. A. Budd, Mr. Barney Savage and the Sheriff, Mr. J. C. Hardwick, Jr., Mr. H. C Motter, Mr. J. M. Tapscott and Mr. Virgil Strain? A. Yessir. Q. Do you now wish to make this statement freely and voluntarily in repudiation to what you formerly made as a statement this morning, in other words in denial of what you said this morning? A. What are you speaking of? Q. The statement you made in reference to all these other negroes to help kill a negro is a mistake. You swear to tell the truth and nothing but the truth so help you God. You state just exactly what took place, where you put Fred's body and everything? A. Yessir. Q. Start when you first planned to do it, Friday. Talk plain and slow so we can understand every word you say. A. Friday I made up my mind to kill Fred and get the money he had, but I didn't kill him Friday night, I waited until Saturday night. I went to town with him to the Boleta house. I went with him Saturday night to the Boleta house and after they threw the number on our way back I stopped and we went and got some electric light bulbs and got a pair of shoes out of the shoe shop and came around to Kelsey City. I got out and went to John C's. I came back and got in the car with Fred and went down to Mr. Davis and stopped down there. I tried to buy some moonshine. I couldn't get it so we left for Riviera. We go on around the curve and I killed Fred with the crank. Q. Tell us what you bid. A. I hit him twice in the car and he slumped over on the door. Q. The door came open? A. Yessir. A. And you went around the car? A. Yessir and drug him out. Q. Around the automobile to the west side of the road in the palmettos? A. Yessir. Q. When did you take the money. A. Out in the palmettos. Q. When did you jerk the watch off? A. In the palmettos. Q. Then what did you? A. I pulled his lumberjacket off. Q. What else? A. I pulled his top shirt off and I pulled his undershirt off. Q. Why did you do that? A. To see if he had any money around his waist. I drug him back and put him in the car. Q. Did you see a car coming? A. Yessir. Q. Tell what you did. A. I laid down in the palmettos. Q. Did a car pass? A. Yessir. Q. Then what did you do? A. I got up. Q. What else? A. I drug him back to the car. Q. Where did you put hom? A. I put him in the back seat. I cranked up and carried him on the the lake. Q. How did you go? A. By Monroe Heights until I got to the Dixie. Q. The old Dixie? A. Yessir. Q. Then what direction did you go? A. North until I got to the Silver Beach Road. I turned to the right and went right down Silver Beach Road until I got to the lake and I drove the car to a stop. I dragged Fred out and a dog came and began to bark. I picked up some sand and ran him away the first time. He came back and I picked up some more sand and ran him away. The dog went back to the house. Q. Did you see a light? A. As I was throwing Fred in the lake I looked up and saw the light in the house. I felt in my pocket and got some receipts Q. What was one of these receipts? A. One was for my refrigerator. I wrapped the receipts up around the watch and threw it as far in the lake as I could. I came on back and got in the car, cranked up and went back up the Silver Beach road until I got to the Old Dixie. I went north, drove the car to some woods, got out and walked home, changed pants went over to the other side and stayed over there...