Davis v. State

• Decision Date: 16 November 1956
• Parties: Hoyt Dan DAVIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 629

90 So.2d 629

Hoyt Dan DAVIS, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida, Division A.

Nov. 16, 1956.

Walter A. Shelley and Horn & Ossinsky, Daytona Beach, for appellant.

Richard W. Ervin, Atty. Gen., and Jack A. Sudduth, Tallahassee, for appellee.

THORNAL, Justice.

Having been tried on an indictment charging first degree murder, appellant Davis seeks reversal of a judgment of guilt and sentence to thirty years in the state prison pursuant to a verdict of the jury finding him guilty of second degree murde with a recommendation for mercy.

We are called upon to determine whether the evidence which was purely circumstantial was sufficient to support the verdict.

About 9:00 A.M., June 6, 1952, appellant approached a crew of men working at the west city limits of Ormond. He was in search of a telephone. He related a story that he and his wife had gone fishing early that morning on the banks of Little Tomoka Creek a short distance away. He stated that he had crossed a bridge over the creek and had dozed off on a blanket he laid in the thicket some distance on the other side. He said he was awakened around 8:00 o'clock when he heard his wife call 'Hoyt'. According to his story, she was fixing breakfast and fishing when he left; when he re-appeared in response to the call, his wife was nowhere to be found; he had searched for her, couldn't locate her and now wanted to telephone the sheriff's office to seek help. He then left the crew of men, drove down the road, located a telephone in a private home and called the deputy sheriff, repeating the same story. He met the deputy and the constable and they proceeded to the scene where they all searched extensively. Appellant consistently related the same account of the disappearance each time he told about it. The search continued throughout most of the morning when it was decided that they would go back into Ormond and contact the daughter of the missing wife, again at the suggestion of appellant. This they did around noontime. While in the city the deputy searched the trailer home of the parties with the consent of the appellant. Finding nothing, they returned to the scene of the tragedy. Between 2:00 and 2:30 P.M. after probing the creek bottom (with appellant assisting in the probing), the dead body of the missing wife came to the surface.

Appellant was placed under arrest and subsequently tried for first degree murder by drowning.

Appellant and deceased had been married about three months. There was testimony by neighbors and daughters of the deceased that he had abused her physically and had at times made threats against her.

There are hundreds of pages of testimony. We deem it unnecessary to attempt to delineate all of it for the reason that we do not consider this to be necessary to our determination of the case. Suffice it to emphasize that every item of testimony in any way pointing to the guilt of the accused is totally and completely circumstantial. There is not one item of direct evidence that connects him with the crime for which he was convicted.

Reverting to the summary above presented, it should be noted that from about 9:00 A.M. until the time the body was located, between 2:00 and 2:30 P.M., the accused was always in the company of police officers of other witnesses who appeared at the trial.

To support the allegation of the indictment that the deceased met her death by drowning, the State offered the testimony of an expert pathologist. It was necessary to do this in order to establish the cause of death relied upon in the indictment. In the course of the examination of the doctor by the State's Attorney, the following testimony went into the record:

'Q. Doctor, can you determine how long Mrs. Ella Davis had been dead at the time you performed the Autopsy? A. What I give you is merely an estimate of the time, and I think that I estimated it at the time at roughly around 6 hours, plus or minus on either side. It is difficult to do that when a body has been immersed in water because it alters the usual signs.

'Q. 6 hours? A. Yes.

'Q. And you performed it at 6 o'clock, A. Yes.

'Q. So she wouldn't have been dead then until Noon? A. Now that is not necessarily so, Mr. Sams. I said that is an estimate of the time. I said roughly 6 hours one way, and I can't say she died at Noon.

'Q. Would say she hadn't died early in the morning? 'A. I don't believe she had, in my opinion.

'Q. What time do you think she did die? A. I would say somewhere around Noon.

'Q. Around Noon? A. Yes sir.'

No other testimony as to the time of death was offered. The doctor's testimony was the only direct evidence on the real cause of death. If the doctor's testimony is to be believed, then the deceased met her death around noon the day of the tragedy. The whereabouts of the appellant is accounted for from about 9:00 A. M. During the period just before noon until approximately 1:00 o'clock, no one at all was at the scene of the tragic occurrence. During this interim everyone connected with the search, including appellant, was in town.

Appellant seeks reversal on the proposition that the circumstantial evidence does not meet the test sufficient to sustain his conviction. The State, on the contrary, contends that the evidence, though circumstantial, inescapably points to guilt.

In arriving at the conclusion which we hereafter announce, we are aware of the fact that circumstantial evidence is many times relied upon to support convictions for crimes. Direct evidence is that to which the witness...