Crews v. State
| Decision Date | 31 May 1940 |
| Citation | 143 Fla. 263,196 So. 590 |
| Parties | CREWS v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied June 24, 1940.
En Banc.Error to Circuit Court, Duval County; A. D. McNeill, Judge.
Wilburn R. Crews was convicted of murder in the first degree, and he brings error.
Affirmed.
George A. Pierce and Edwin L. Jones, both of Jacksonville, for plaintiff in error.
George Couper Gibbs, Atty. Gen., and William Fisher, Jr. Asst. Atty Gen., for defendant in error.
The plaintiff in error, Wilburn R. Crews, on the 18th day of October, 1938, was indicted by a grand jury of Duval County Florida, for the crime of murder in the first degree. The indictment alleges that the defendant, on the 16th day of July, 1938, unlawfully and from a premeditated design to effect the death of Oly Mae Crews did then and there kill the said Oly Mae Crews by shooting her to death with a pistol. On October 30, 1938, an order was entered by the Circuit Court of Duval County adjudging Wilburn R. Crews to be insolvent and appointing attorneys George A. Pierce and Edwin L. Jones of the Duval County Bar, to represent the defendant Wilburn R. Crews. The defendant entered a plea of not guilty to said indictment.
The record shows that several motions were presented by the defendant and ruled upon by the lower court, including a motion for a continuance filed on the 26th day of January, 1939. The basis of the motion for continuance was that the defendant, through counsel, had filed in the County Judge's Court of Duval County, a suggestion of insanity during the month of November, 1938, and that court had not ruled thereon, notwithstanding the fact that the petition was in full compliance with the statute. The trial court denied the motion for a continuance. On February 6, 1939, another motion for continuance was made on the same ground as the one presented on January 26, 1939, and was also denied by the lower court.
On February 11, 1939, a jury was impaneled and sworn to try the case and evidence was submitted. The jury, after hearing all the evidence, argument of counsel and charge of the Court upon the law, rendered a verdict of guilty of murder in the first degree, without recommendation to mercy. Counsel for defendant, within the time prescribed by law, filed a motion for a new trial consisting of 97 grounds, and on the 21st day of July, 1939, motion for a new trial was by the trial court overruled and denied, when the defendant was sentenced to death by electrocution. From this judgment of conviction and sentence writ of error was taken, the record perfected and the case is here for review on a number of assignments of error.
It is contended that the lower court erred in its orders denying the defendant's motion for a continuance of the cause until a subsequent term of the Court. The ground or basis for the motions for continuance was that five reputable citizens, under the provisions of Section 3654, C.G.L., in November, 1938, filed a petition in the County Judge's Court of Duval County, Florida, suggesting the insanity of Wilburn R. Crews and asked that he be examined. The petition was filed conformed to the statute, but the County Judge of Duval County failed or omitted to make an order on the petition as presented. The said Wilburn R. Crews at the time was being held in the county jail of Duval County on the charge of killing his wife, Oly Mae Crews.
The second motion for a continuance of the trial of the case until a subsequent term of the court was made on February 6, 1939, some few days prior to the date set for the trial of case on its merits in the Circuit Court of Duval County. The grounds of this motion for a continuance were substantially the same as contained in the previous motion, viz.: that a petition under Section 3654, C.G.L., was then pending in the County Judge's Court of Duval County seeking an examination of the mental condition of Wilburn R. Crews, and that the petition had not been acted upon by the Judge of the County Judge's Court.
If the Judge of the County Judge's Court had made an order on the petition or had appointed a Commission to examine into the mental condition of Wilburn R. Crews and the Committee, after a full examination, had reported and recommended that Crews be committed, but little, if any, different results would have occurred because defendant was then being held in the county jail of Duval County, and had the petition been granted as prayed for the petitioner would have been transferred to the Florida Farm Colony or State Hospital as provided for by Section 3677, C.G.L. While it is true that the order of commitment would necessarily have been based on the mental condition of the defendant and the County Judge's Court by law was authorized to make an order as to the custody of the defendant had a Committee so recommended, but these statutes cannot be construed or interpreted so as to prevent the Circuit Court of Duval County from proceeding to exercise its constitutional jurisdiction in placing the defendant on trial under an indictment charging murder in the first degree. The Circuit Court likewise has jurisdiction to adjudicate the mental condition of the defendant. There is no merit to this assignment.
The record here discloses that the defendant below was adjudged insolvent and on the 26th day of January, 1939, applied to the lower court for an order permitting and allowing the defendant authority to employ Dr. H. Mason Smith, a psychiatrist, at a cost of $400 to be paid by the County of Duval, to make a physical and medical examination of the defendant and to give testimony on the trial of the cause as to defendant's mental condition. The lower court denied the application. While it is true that the defendant was insolvent and as a matter of law was entitled to the compulsory attendance of witnesses in his behalf and the cost thereof paid by the County of Duval, it does not appear by the petition or exhibits attached as evidence offered in support thereof before the Circuit Court that the proposed testimony of the physician was material or relevant to the defense of the defendant, but left the trial court in doubt and uncertainty as to what favorable testimony, if any, the proposed witness would give if required to appear. The most certain feature of the proposed testimony was a statement therefor in the sum of $400.00 to be paid by Duval County. The record here fails to show and the brief of counsel for plaintiff in error fails to cite authorities showing an abuse of discretion on the part of the lower court.
The testimony shows that on the afternoon of July 16, 1938, defendant hired a cab and went to Mandarin, some few miles from the City of Jacksonville, where his wife and daughter were then residing with a family by the name of Landiss. When the defendant arrived at the Landiss home, Mrs. Crews, his daughter Shirley, and the Landiss family were in the kitchen eating supper. He asked the privilege of talking with his wife and daughter, and the three left the kitchen and walked out on the front porch of the home. The defendant asked Mrs. Crews and Shirley why they had not visited him in Jacksonville and Mrs. Crews replied that there had not been room for them in the Landiss automobile when it went into Jacksonville. The defendant then said he was going to do what he intended to do, and began shooting at Mrs. Crews. The defendant fired five shots, four of them at his wife and one of them at his daughter Shirley as she ran around the corner of the house in the direction of the kitchen. It is contended by counsel for plaintiff in error that the evidence of the shooting of Shirley Crews was improper, prejudicial and not a part of the res gestae. Mrs. Landiss testified as to picking up Shirley Crews immediately after she ran from the front porch to the back of the house, and further testified that Shirley told her that she (Shirley Crews) was shot. Mrs. Landiss' testimony is that she heard the shots on the porch when she was in the kitchen and immediately went to the front of the house and heard Shirley Crews screaming and running away from the scene of the shooting. There is some evidence that the defendant below fired four shots at his wife and while he was firing these shots his daughter Shirley ran from the scene and as she turned the corner of the building the defendant shot her, the ball entering the back of her body as she ran. Mrs. Landiss took the 11 year old girl, inquired as to her trouble, and was by Shirley told that her father shot her. From our study of the testimony, we conclude that the statements made by Shirley Crews to Mrs. Landiss were made from one to three minutes after the five reports of the pistol. We do not think that this testimony was prejudicial to the defendant but was a part of the res gestae. See Reid v. State, 68 Fla. 105, 66 So. 725.
The defendant is shown to be in his early...
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