Chisolm v. State
| Decision Date | 02 July 1917 |
| Parties | CHISOLM v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Citrus County; W. S. Bullock, Judge.
Silas Chisolm was convicted of murder in the first degree, and he brings error. Reversed.
Syllabus by the Court
An application for a change of venue is addressed to the sound judicial discretion of the trial court, and the refusal of such application will not be held to constitute reversible error by the appellate court, unless it is plainly made to appear from the transcript of the recrod that the trial court acted unfairly and abused such discretion.
In passing upon an assignment in a criminal case, based upon the refusal of an application for a change of venue upon the ground that a fair and impartial trial could not be had in the county where the crime was committed, by reason of the fact that the inhabitants of such county were so prejudiced against the defendant as to render it impracticable to get a qualified jury to try the case against the defendant, an appellate court may examine the entire transcript of the record; and where it appears therefrom that, out of a special venire of 25 men, summoned from the body of the county, a jury was selected and accepted by the defendant, without exhausting the challenges allowed by the law, so far as is shown, the appellate court may be strengthened in its conclusion that no abuse of judicial discretion by the trial court has been made to appear.
One of the essential ingredients of murder in the first degree is that it must have been 'perpetrated from a premeditated design to effect the death of the person killed, or any human being,' and, in a prosecution for such crime, where there are no facts and circumstances in evidence from which the formation of the alleged premeditated design may be found, a verdict of murder in the first degree should be set aside and a new trial granted, upon proper proceedings duly taken.
COUNSEL Bullock & Trantham, of Ocala, for plaintiff in error.
T. F West, Atty. Gen., anc C. O. Andrews, Asst. Atty. Gen., for the State.
Silas Chisolm seeks relief here from a conviction of the crime of murder in the first degree. We shall first consider the seventh assignment, which is based upon the denial of the defendant's motion for a change of veune. The statute regulating a change of venue, under which this motion was made, is section 3997 of the General Statutes of 1906, Compiled Laws of 1914, and reads as follows:
'Whenever it shall be made to appear to the satisfaction of the presiding judge of any of the circuit courts of this state that the venue of any cause, then pending in such court should be changed either because a fair and impartial trial cannot be had in the county where the crime was committed, or because it is impracticable to get a qualified jury to try the case in the county where the crime was committed, or where it appears from the examination of the books of registration of the county that there are not a sufficient number of registered voters to form a grand and petit jury, it shall be in the power and discretion of such judge to change the venue of such case, from the circuit court of the county where such cause is at the time pending to the circuit court of any other county within the same circuit.'
This section is a consolidation and amendment of several statutes. See sections 2927, 2928, and 2930 of the Revised Statutes of 1892, and chapter 4394 of the Laws of Florida (Acts of 1895, p. 159), to which we have had occasion to refer and discuss several times. We have repeatedly and uniformly held that:
'Applications for changes of venue are addressed to the sound discretion of the trial court, and the refusal of such applications will not be held erroneous, unless it appears from the facts presented that the court acted unfairly and committed a palpable abuse of sound discretion.'
See McNealy v. State, 17 Fla. 198; Irvin v. State, 19 Fla. 872; Adams v. State, 28 Fla. 511, 10 So. 106; Leslie v. State, 35 Fla. 171, 17 So. 555; Shepherd v. State, 36 Fla. 374, 18 So. 773; Shiver v. State, 41 Fla. 630, 27 So. 36; Roberson v. State, 42 Fla. 223, 28 So. 424; Squires v. State, 42 Fla. 251, 27 So. 864; Hewitt v. State, 43 Fla. 194, 30 So. 795; O'Berry v. State, 47 Fla. 75, 36 So. 440; Collins v. State, 64 Fla. 239, 60 So. 785; Robertson v. State, 64 Fla. 437, 60 So. 118; Roberts v. State, 72 Fla. 132, 72 So. 649.
In the instant case the application for a change of venue was supported by the affidavits of the defendant himself, Hon. R. B. Bullock, one of his attorneys, and Mr. John P. Galloway, the sheriff of Marion county. No useful purpose would be served by setting forth the substance of these affidavits. It is sufficient to say that we have carefully read them, as well as the entire transcript of the record, including the opinion rendered by the circuit judge upon such application, which is copied in the transcript. We are of the opinion that the affidavits submitted do not show that the inhabitants of Citrus county were so prejudiced against the defendant as to render it improbable that a fair and impartial trial could be had in such county. We are strengthened in this conclusion by the fact that the transcript of the record shows that out of a special venire of 25 men, summoned from the body of the county, a jury was selected and accepted by the defendant, without exhausting the challenges allowed him by the law, so far as is made to appear. We fail to find any abuse of discretion by the circuit judge in overruling the application for a change of venue, therefore must hold that this assignment has not been sustained.
Th other assignments which are insisted upon before us are based upon the refusal of certain requested instructions and the overruling of the motion for a new trial. No exceptions were taken to any portion of the charge given by the court of its own motion, so we must assume that the defendant had no fault to find with it. In fact, one of the grounds of the motion for a new trial which is strenuously argued is that the verdict returned was contrary to the charge of the court, certain portions of which are copied and emphasized by the defendant in his brief. We have carefully examined the requested and refused instructions which are complained of, and are of the opinion that such assignments have not been sustained. The requested and refused instructions would seem to have been fully covered by the charge of the court, in so far as the principles of law stated in such instructions are correct and applicable; so we must hold that these assignments have failed.
The other grounds of the motion for a new trial are that the verdict is contrary to the law and is not supported by the evidence. After a careful scrutiny of all the evidence adduced, we are constrained to hold that it is insufficient to uphold a verdict of murder in the first degree and the imposition of the sentence of death upon the defendant. Section 3205 of the General Statutes of 1906, Compiled Laws of 1914, defines the three degrees of murder and prescribes the punishment therefor as follows:
'When perpetrated without any design to effect death, by a person engaged in the commission of any felony, other than arson, rape, robbery or burglary, it shall be murder in the third degree, and shall be punished by imprisonment in the state prison not exceeding twenty years.'
We have often had occasion to refer to and construe this statute, so that there is no occasion for any extended discussion. As we have repeatedly held, one of the essential ingredients of murder in the first degree is that it must have been 'perpetrated from a premeditated design to effect the death of the person killed, or any human being.' See Baker v. State, 54 Fla. 12, 44 So. 719, wherein we held:
'In a prosecution for murder in the first degree, charged to have been committed from a premeditated design to effect death, where from are no facts and circumstances in evidence from which the formation of the alleged premeditated design may be found, a verdict of murder in the first degree should be set aside and a new trial granted upon proper proceedings duly taken.'
Also see Savage v. State, 18 Fla. 909; Ernest v. State, 20 Fla. 383; Denham v. State, 22 Fla. 664; Barnhill v. State, 56 Fla. 16, 48 So. 251. As we held in Whidden v. State, 64 Fla. 165, 59 So. 561:
'A sudden transport of passion, caused by adequate provocation, if it suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, may not excuse or justify a homicide, but it may be sufficient to reduce a homicide below murder in the first degree, although the passion does not entirely dethrone the actor's reason.'
Likewise we held in Disney v. State, 72 Fla. 492, 73 So. 598:
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