Deeb v. State
| Decision Date | 23 December 1937 |
| Citation | 131 Fla. 362,179 So. 894 |
| Parties | DEEB v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied April 5, 1938.
Error to Circuit Court, Okaloosa County; L. L. Fabisinski, Judge.
George Deeb was convicted of manslaughter, and he brings error.
Reversed for new trial.
COUNSEL Philip D. Beall and Wm. McChesney, both of Pensacola, and H. H. Wells and B. K. Roberts, both of Tallahassee, for plaintiff in error.
Cary D Landis, Atty. Gen., Roy Campbell and Tyrus A. Norwood, Asst Attys. Gen., and E. Dixie Beggs, Jr., State Atty., of Pensacola, for the State.
Plaintiff in error was indicted by the grand jury of Escambia county Fla., June 14, 1933, for murder in the first degree alleged to have been committed in Escambia county, Fla., April 19 1933. Accused was allowed bail. Deeb v. Gandy, 110 Fla. 283, 148 So. 540. For further proceedings relative to the custody of the accused, see State ex rel. Deeb v. Fabisinski, Judge, 111 Fla. 454, 152 So. 207, 156 So. 261; State ex rel. Deeb v. Campbell, 123 Fla. 894, 167 So. 805.
When the accused was brought into the circuit court for Escambia county March 23, 1934, counsel for the accused stated facts in support of a suggestion made by him that the accused was not of sound mind, or of sufficiently sound mind, to be arraigned on the indictment or tried mereon. The court had testimony taken, and entered thereon an order that the accused 'is sufficiently sane to enter upon the trial of the case,' March 30, 1934. On the same day the accused was arraigned in the circuit court for Escambia county, and, being represented by counsel, pleaded not guilty to the indictment charging murder in the first degree.
Counsel for the accused then moved for a change of venue upon grounds and the required proofs to the effect that:
The application was sworn to as being true by the defendant. An order was made April 13, 1934, transferring the cause to the circuit court for Okaloosa county in the same circuit. At the trial in the circuit court for Okaloosa county, a defense under the plea of not guilty was that the accused was not of sufficiently sound mind to be arraigned and tried.
A verdict of guilty of manslaughter was rendered, and the defendant was on April 27, 1934, adjudged to be guilty of manslaughter and sentenced to twenty years' imprisonment in the State Prison. On writ of error the judgment of conviction was reversed on the ground that 'the court erred in requiring the accused to plead to the indictment and attempt to defend his case.' Deeb v. State, 118 Fla. 88, 158 So. 880, 883.
The mandate evidencing the reversal of the judgment of conviction for manslaughter was transmitted to the circuit court for Okaloosa county, in which court the judgment was rendered.
It appears that thereafter, when the defendant with his counsel and the state attorney were present in open court in the circuit court for Okaloosa county, in contemplation of another trial for manslaughter on the indictment for murder in the first degree found in Escambia county against the defendant, and transferred to Okaloosa county, the judge suggested that the cause should be remanded to Escambia county, Fla., for further proceedings, but counsel for the defendant agreed that the court had jurisdiction of the cause and could proceed with the trial; thereupon the defendant, attended by counsel, was duly arraigned and pleaded not guilty to the charge of manslaughter contained in the indictment. A trial was had, resulting in a verdict of manslaughter and a judgment of conviction thereon, with a sentence to twenty years' imprisonment in the State Prison.
On writ of error taken to the second judgment of conviction for manslaughter rendered by the circuit court for Okaloosa county, it is suggested in limine by one of defendant's counsel that such circuit court did not have jurisdiction to try the defendant for manslaughter in Okaloosa county on the indictment for murder in the first degree found in Escambia county for an offense charged to have been committed in Escambia county. It is contended here that the order changing the venue is ineffectual to give jurisdiction of the cause to the circuit court for Okaloosa county, on the ground that the accused was not sufficiently sane to ask for a change of venue.
The order of the circuit court for Escambia county, made under the statute, changing the venue of the prosecution to Okaloosa county, was not void, since the circuit court for Escambia county then had jurisdiction of the cause and of the accused, and the order was made on the sworn application of the accused and supported by the proofs required by the statute, after the accused had been adjudged to be 'sufficiently same to enter upon the trial of the case,' on the indictment for murder in the first degree, and, after the accused had been arraigned in open court and with his counsel present to advise him, had in open court pleaded not guilty to the indictment.
The first conviction of the defendant for manslaughter in the circuit court for Okaloosa county, on the indictment for murder in the first degree found in Escambia county, was on writ of error reversed by this court on the ground that the court erred in requiring the accused to plead to the indictment and attempt to defend against it. If such reversal of the conviction for manslaughter on the ground stated had the legal effect of making the order changing the venue to Okaloosa county erroneous, such reversal did not render the order void, since the circuit court for Escambia county had constitutional jurisdiction of the cause and of the accused, with statutory authority to change the venue upon the application sworn to by the accused and supported by the proofs required by the statute. See Ammons v. State, 9 Fla. 530; 16 C.J. 221. The order changing the venue was not 'improper and illegal' because it was not supported by the proofs of facts alleged as required by the statute authorizing a change of venue, as was the case in Greeno v. Wilson, 27 Fla. 492, 8 So. 723. See, also, Curry v. State, 17 Fla. 683; Turner v. State, 87 Fla. 155, 99 So. 334.
A change of venue in a criminal prosecution at the instance of the defendant who is in open court and represented by counsel is for the defendant's benefit as well as to have a proper administration of justice; and, if an order for a change of venue is made according to the statute regulating the subject, the order making the change of venue is not void and may be sufficient to transfer the cause to the other court; and the agreement of the defendant's counsel that the court had jurisdiction and could proceed with the trial completes the jurisdiction of the court to try the defendant who was present in court, there being then no suggestion that defendant was not mentally capable of going to trial, though he had previously been under mental disability.
There is no contention that the change of venue proceedings were not in accord with the statute or were otherwise legally insufficient to transfer the cause to Okaloosa county.
Insanity of the defendant at the time of the second trial does not appear to have been made a defense under the plea of not guilty. Self-defense was the main issue at such trial.
The first trial in the circuit court for Okaloosa county resulted in a verdict and judgment of guilty of manslaughter which operated to acquit the defendant of any degree of unlawful homicide above manslaughter. Phillips v. State, 88 Fla. 117, 101 So. 204. Upon the reversal by this court of the conviction for manslaughter, the cause was remanded to the circuit court for Okaloosa county. Another trial for manslaughter on the indictment was properly had in the circuit court for Okaloosa county, there being no criminal court of record in Okaloosa county. See sections 25, 28, art. 5, Constitution.
In Ex parte Vickery, 51 Fla. 141, 40 So. 77, there was no change of venue from Escambia county in which county the indictment was found for a first degree murder charged to have been committed in that county, and there was a criminal court of record in Escambia county having jurisdiction of noncapital felonies. There is now a court of record in Escambia county having jurisdiction of all noncapital felonies. See Holland v. State, 83 Fla. 400, 91 So. 379.
Except by forbidding the passage of special or local laws 'providing for change of venue in civil or criminal cases,' the Constitution of Florida does not provide for or regulate proceedings for a change of venue; but the Constitution does secure to one charged with a crime the right to a trial by an impartial jury as well as a right to a trial in the county where the crime was committed. The following appears in section 11, Declaration of Rights, Florida Constitution: 'In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed, and shall be heard by himself, or counsel, or both.'
Trial by an impartial jury is quite as important to an accused and to the proper administration of justice as is a trial in the county where the crime was committed. O'Berry v State, 47 Fla. 75, 36 So. 440; Higginbotham v. State, 88 Fla. 26, 101 So....
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