Dewey v. State
| Decision Date | 20 July 1938 |
| Citation | 186 So. 224,135 Fla. 443 |
| Parties | DEWEY v. STATE. |
| Court | Florida Supreme Court |
On Rehearing November 22, 1938.
Error to Circuit Court, Suwannee County; Hal W. Adams, Judge.
R. J Dewey was convicted of murder in the second degree, and he brings error.
Affirmed.
On Rehearing.
COUNSEL J. L. Blackwell, of Live Oak, for plaintiff in error.
Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.
Plaintiff in error Dewey was convicted of murder in the second degree under an indictment charging murder in the first degree of his wife, Margaret Dewey.
Plaintiff in error and his mother were jointly indicted. The first trial resulted in a mistrial. On the second trial the mother was acquitted and Dewey convicted, as above stated.
The sole question presented is whether or not the evidence was legally sufficient to warrant the conviction.
The record shows that Margaret Dewey came to her death by a gun or pistol shot wound inflicted at close range; that the bullet entered her body at the left breast close to the nipple, ranged downward and came out the back. Where that bullet went to is not shown.
Dewey reported the death on the morning after he said it occurred. Investigation developed that there was practically no blood on the body, a very small spot of blood on the floor where the body was lying, but there were blood splashes on the wall; that the deceased was robed only in a night-gown when she came to her death. There were powder burns on her left breast and on her left hand. The pistol which was found near the body contained one unexploded cartridge and two empty shells. A bullet had passed through a closet door 3 feet 10 inches from the floor in the room where the body was found. That bullet passed through the door and through some clothing that was hanging inside the closet and dropped from the clothing to the floor during the investigation. Dewey reported to neighbors and to the Sheriff the next morning that about 9 o'clock on the night before he was lying on the floor in front of the fire; that his wife went across the room near to a radio, that he though she was going to turn on the radio; that he heard the report of a shot and his wife fell; that he got up, looked for his authomobile or truck keys and did not find them; that he then covered the body up with a blanket and went to bed and went to sleep. He also told the neighbors and the Sheriff that when the shot was fired his mother, who was sleeping in the house, awakened and asked what was the matter, or something to that effect, and he told her to 'go back to sleep', which she did. He got up the next morning and reported what he termed a suicide.
Some other pistol cartridges were found on the floor of the room and Dewey told neighbors and the Sheriff that his wife dropped those when she was loading the pistol.
He had his wife's body prepared for burial, took it to Arkansas and was later arrested in New Orleans, La., and brought back to Suwannee County for trial.
The record shows that the bullet hole in the closet door was higher from the floor than the place where a hole would have, in all reasonable possibility, been made if made by the same bullet which ranged through the woman's body from the left nipple downward out the back and continuing on to the door.
The jury was justified in reaching the conclusion that there were two shots fired. Dewey only accounted for one shot being fired. Dewey took the stand in his own behalf but made no explanation to the jury of how the homicide occurred.
It is well settled that when a defendant does not take the stand in his own behalf such circumstance is not to be considered as any evidence of guilt. But when a defendant charged with the unlawful homicide of another takes the stand in his own behalf, then the jury may consider what he says and what he may fail to say as bearing upon the merits of the case.
Before Dewey took the stand the Sheriff had testified about the conversation that Dewey had with him in regard to the homicide. When Dewey took the stand in his own behalf the following occurred:
'Q. Did you hear a report of a gun? A. A very dull report.
'Q. Your home out there faces what direction? A. It is kinda catacornered and faces West and North. But a little more West than North.
'By Judge Kelley:
Who was there in your home when this happened? A. My wife, my mother and myself.'
It will be noted that Dewey did not even testify that the statement which he had made to the Sheriff was true.
In the case of Kersey v. State, 73 Fla. 832, 74 So. 983, Mr. Justice Shackleford, speaking for the Court said (page 985):
Again, in the course of the opinion Justice Shackleford said:
'In order to render our discussion of these two assignments the more readily intelligible, we would state that there were no eyewitnesses to the shooting, and as the defendant frankly says in his brief: 'It was the theory of plaintiff in error that deceased committed suicide, that she pulled the chair (which was found lying on the floor upon its back near the bed) up near the bed, placed the stock of the gun in the bottom of the chair so as to have the proper range and so that she could hold it and reach it when she was lying down, and that she, with her left hand holding the barrel or muzzle of the gun to her head, with her right hand pushed the broomstick (which was found near the bed) against the trigger of the gun and discharged it.”
In that case the State relied largely upon circumstantial evidence the defendant relying upon the circumstances to show that the deceased came to her death by suicide. The circumstances as shown in that case to establish unlawful homicide by the accused were not as strong as were the circumstances in this case.
It appears from the opinion as reported in the case of Sutter v. State, 105 Neb. 144, 179 N.W. 414, that in that case the State relied upon circumstantial evidence no stronger than the circumstances relied on in this case and the conviction was upheld.
The case of State v. Beeson, 155 Iowa 355, 136 N.W. 317, is to like effect.
The evidence adduced is sufficient to meet the rule required in cases where circumstantial evidence is relied upon for conviction. That is, it is not only consistent with the guilt of the accused, but is inconsistent with any other reasonable hypothesis except the guilt of the accused.
It is not necessary that circumstantial evidence be so strong and cogent as to exclude every imaginable possibility except the defendant's guilt, but it is sufficient, if it is so strong and cogent as to exclude every reasonable hypothesis except the defendant's guilt.
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...that the defendant was in possession of "live" lottery tickets; conviction for possession of lottery tickets upheld); Dewey v. State, 135 Fla. 443, 186 So. 224 (1938) (state's evidence deemed sufficient to link the defendant to the murder of his wife; defendant's statement to sheriff that h......
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