Carswell v. State

• Decision Date: 26 June 1963
• Docket Number: No. 31759,31759
• Citation: 154 So.2d 829
• Parties: Henry Jones CARSWELL, a/k/a Henry Jones Carwell, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 829

154 So.2d 829

Henry Jones CARSWELL, a/k/a Henry Jones Carwell, Appellant, v. STATE of Florida, Appellee.

No. 31759.

Supreme Court of Florida.

June 26, 1963.

Cunningham & Cunningham and Garlon A. Davis, West Palm Beach, for appellant.

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

PER CURIAM.

Appellant, Henry Jones Carswell, alias Henry Jones Carwell, was indicted for murder in the first degree in that on May 30, 1961, he did unlawfully and from a premeditated design to effect the death of one Alma Ree Cooper, did murder the said Alma Ree Cooper in Palm Beach County, Florida, by setting fire to and burning a dwelling house occupied at the time by said Alma Ree Cooper whereby she burned to death.

The appellant was tried and found guilty of murder in the first degree without recommendation to mercy. On December 28, 1961, the trial court adjudged the appellant guilty of murder in the first degree and imposed the death penalty. This appeal is from the judgment so entered.

The first question as stated by appellant is as follows:

'Where the corpus delicti is attempted to be proven by purely circumstantial evidence, the court must instruct the jury on circumstantial evidence, and particularly with reference to its weight and sufficiency.'

Examination of the record in this cause reveals that the following facts were established by uncontradicted testimony: About 12:00 o'clock on the night of May 30, 1961, Alma Ree Cooper lost her life in a fire that occurred in Griff's rooming house in Pahokee, Florida. Dr. Hugh Dorch, the county medical examiner, testified that her death was caused by 'burning and carbon monoxide poisoning' and that 'the fire was the physical agent that killed her.'

The victim's landlady, Mrs. Jeffers, testified that when she become aware of the fire it was located directly in front of the door to the victim's room and nowhere else. The landlady also testified that the door to the victim's room was loked from the outside by means of a hasp and lock and that the lock appeared to be closed. Another tenant of the building, Mr. Sutton, testified that the fire originated in front of the door to the victim's room and that he was unable, because of the fire, to answer the victim's plea that he open her door which, he asserted, was locked from the outside. An expert witness testified that he had analyzed the remains of the piece of floor taken from immediately in front of the door to the victim's room and that said remains contained a residue of a petroleum product.

The county deputy fire marshal testified that in the course of his investigation of the scene of the fire immediately after it had been extinguished, he discovered a pool of greasy water at the doorway to the victim's room. The marshal testified it was his opinion that the fire originated in or around the victim's doorway.

Bernard Andrews, a filling station operator, testified that he sold the appellant 78cents worth of gasoline in a square oil can shortly before the fire started.

Upon completion of all of the testimony as detailed above, the state introduced appellant's confession into evidence. Although not specifically so stated, one of the appellant's principal points on appeal is that the above testimony does not constitute sufficient proof of the corpus delicti to justify the court's admission of the confession into evidence.

The general rule is that corpus delicti is composed of the fact of death, the criminal agency of the one who caused the death and the identity of the deceased. Hulst v. State, 123 Fla. 315, 166 So. 828; Deiterle v. State, 101 Fla. 79, 134 So. 42; Lee v. State, 96 Fla. 59, 117 So. 699.

Appellant contends that all these elements of corpus delicti were established by circumstantial evidence. We do not think so. The testimony of witnesses W. L. (Buck) Lee and Dr. Hugh Dorch established the fact of Alma Ree Cooper's death. The testimony of Lee, Dorch and Jeffers established the identity of Alma Ree Cooper and that her death resulted from the criminal agency of another was strongly supported by Jeffers' testimony in that she testified that the door between deceased's room and the hall was locked from the outside where the fire started. State witness Sutton, whose room was adjacent to that of the victim, testified that when he became aware of the fire he ran into the hallway and found that the fire was concentrated in front of the victim's door and that there was no fire anywhere else. Sutton also testified that the victim importuned him to open the door because it was locked from the outside.

In the light of the foregoing testimony, there was in fact no basis for a charge on circumstantial evidence. Then it does not appear that appellant attempted to save his alleged errors by compliance with § 918.10(4), Florida Statutes, F.S.A., so he is not in position to complain. It further appears that appellant did not take advantage of the rule relating to circumstantial evidence announced in Leavine v. State, 109 Fla. 447, 147 So. 897. For these and other reasons the question must be answered contrary to the contention of appellant, or we would say that the corpus delicti was established.

Appellant treats his second and third points together. We will follow the same procedure. Points two and three are as follows:

'POINT TWO

'If a purported confession is given under circumstances explained by the defen...