Browne v. State
| Citation | 92 Fla. 699,109 So. 811 |
| Parties | BROWNE v. STATE. |
| Decision Date | 21 August 1926 |
| Court | United States State Supreme Court of Florida |
En Banc.
Error to Circuit Court, Volusia County; J. J. Dickinson, Judge.
Charles Browne, alias Charles Pissellia, alias Charles Piscellia alias Joseph Young, was convicted of first degree murder, and he brings error.
Affirmed.
Syllabus by the Court
Refusing application for continuance for absence of witness, in absence of showing that witness resided within jurisdiction or that testimony was not merely cumulative, or facts showing defendant could reasonably procure presence of witness at future date, was not abuse of discretion. The essentials of an application for continuance as laid down in Moore v State, 59 Fla. 23, 52 So. 971, are reaffirmed by the court.
Alleged erroneous matter not appearing affirmatively of record, except by recitations in a motion for a new trial, cannot be reviewed by this court.
Clothes of the deceased, and a pistol in the possession of the deceased at the time of an alleged homicide, may be admitted as res gestae evidence, upon a sufficient explanation of subsequent possession and proper identification.
Person convicted of murder is not thereby disqualified as witness in trial of another for murder growing out of same offense which formed basis of his own conviction. (Re. Gen. St. 1920, § 2706). Under the provisions of section 2706 of the Revised General Statutes of Florida 1920, one convicted of murder is not thereby disqualified as a witness in a trial of another for murder growing out of the same offense which formed the basis of the conviction of the witness.
Record of accused in state hospital for insane cannot be established merely by letters from officers of hospital, in view of failure to take depositions (Rev. Gen. St. 1920, § 6085). In a criminal case, the record of the accused in a state hospital for insane cannot be established merely by letters from officers of that hospital.
Admitting extrajudicial confession freely and voluntarily made as determined by trial court is not of itself error, even though preliminary examination was held by court in presence of jury. The admission in evidence of an extrajudicial confession which was in fact freely and voluntarily made, as determined by the trial court, does not of itself constitute error, even though the preliminary examination was held by the court in the presence of the jury.
Best practice is for court to retire jury and in its absence investigate circumstances of alleged confession to determine whether it was free and voluntary; unless alleged confession was freely and voluntarily made, it should not be admitted in evidence; if alleged confession was freely and voluntarily made, preliminary examination to determine its admissibility should be repeated in testimony before jury to enable it to pass on credibility of confession. When it is apparent to counsel or the court that the state will attempt to establish an alleged confession made by the defendant, the best practice is for the court to retire the jury and conduct, in the absence of the jury, a full investigation of all the facts and circumstances surrounding the alleged confession by the defendant, in order that the court may ascertain whether in fact the alleged confession was freely and voluntarily made by the defendant. If not so made, the alleged confession should not be admitted in evidence. If it was so made, the preliminary examination should be repeated in the testimony before the jury to aid the jury in passing upon the credibility and weight of the alleged confession.
J. E. Peacock, of De Land, for plaintiff in error.
J. B. Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
Plaintiff in error, hereinafter referred to as the defendant, was convicted, and thereafter, on April 30, A. D. 1925, sentenced to death on an indictment charging murder in the first degree. The case was before this court on one other occasion. Browne v. State, 88 Fla. 457, 102 So. 546.
In view of the nature of the case, we deem it advisable to discuss seriatim the assignments of error in the order presented by briefs of counsel.
The first assignment of error alleged is the denial of defendant's motion for continuance. The motion was based on the absence of the wife of the defendant, who had been subpoenaed by the state, but not by the defendant. It was alleged that she would testify as to the 'insane delusions and periodical insanity' of the defendant; that at the time of the commission of the alleged homicide he was so afflicted; that he did not know what he was doing, and was incapable of distinguishing between right and wrong; that immediately prior to the time of the commission of the homicide charged against him he had been having insane delusions and spells of mental insanity two or three times weekly; and that the defendant had no recollection of participation in the commission of any crime, or that a crime had been committed.
Assuming, without deciding, that all of such testimony would have been admissible, without the facts upon which such conclusions were based it was not made to appear that the witness resided within the jurisdiction of the court, or that the testimony was not merely cumulative. Nor are any facts alleged which would show the defendant could reasonably procure the presence of the witness at a future day. Moreover, it does not appear that the witness was called by the defendant to testify about these matters, when she was present at the previous trial of the defendant.
It does not plainly appear that there has been any palpable abuse of the broad judicial discretion of the trial court. Moore v. State, 59 Fla. 23, 52 So. 971; Hall v. State, 70 Fla. 48, 69 So. 692.
The second, third, fourth, thirteenth, and fourteenth assignments of error are based solely upon recitals in the motion for new trial. The motion was denied by the trial court. Therefore the alleged erroneous matter, not appearing affirmatively of record, cannot be reviewed by this court. Thomas v. State ex rel. Roberts, 37 Fla. 378, 20 So. 529; Thalheim v. State, 38 Fla. 169, 20 So. 938.
The fifth and sixth assignments of error allege the overruling of defendant's objection to the introduction in evidence of a pistol, and also clothes of the deceased, worn at the time of the alleged homicide. The pistol, with two loaded and three empty shells in it, was found in the possession of defendant's wife. She was which the defendant at the time of the commission of the alleged crime, and remained with him until found by the officers several hours thereafter. We believe there was no error in the admission in evidence of the pistol. The clothes were also properly admitted as res gestae evidence. Underhill's Criminal Evidence (3d Ed.) pp. 212, 701.
The seventh assignment alleges the overruling of objections to testimony of George Burnes, on the ground that he had been convicted and was under a life sentence, and under an indictment charging murder in the first degree, growing out of the same offense for which the defendant was then being tried. There is no merit in the assignment. Section 2706 of the Revised General Statutes of Florida 1920 permits a felon, not convicted of perjury, to testify.
The eighth assignment of error is...
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