Folks v. State

• Decision Date: 26 February 1923
• Parties: FOLKS v. STATE.
• Court: Florida Supreme Court

95 So. 619

85 Fla. 238

FOLKS v. STATE.

Florida Supreme Court

February 26, 1923

Error to Circuit Court, Levy County; A. N. Long, Judge.

Floyed Folks was convicted of manslaughter, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

No error to deny motion for change of venue where impartial jury readily selected. In a prosecution for homicide, where no abuse of discretion or unfairness to the defendant is shown the court will not be held in error for denying a motion for change of venue on the ground of prejudice against the defendant and the influence of the family of the deceased throught the county, when 'an impartial jury,' as required by the Constitution, was readily selected after the denial of the motion for change of venue.

Ruling of trial court on admission of dying declaration not disturbed unless clearly erroneous and ruling is presumed correct. Whether a sufficient and proper predicate has been laid for the admission in evidence of dying declarations is a primary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of such court thereon is entitled to great weight, every presumption being in favor of its correctness, but such ruling is subject to review by an appellate court, though it will not be disturbed unless it clearly appears to be erroneous.

Technical error in ruling on admission of dying declaration not sufficient to reverse conviction where evidence otherwise sufficiently established. Even if technical error may have been committed in admitting proffered testimony of a purported dying declaration, if other evidence properly adduced establishes the fact sought to be proven by the dying declaration, and no harm could reasonably have resulted to the defendant, such technical error, if any, will not justify a reversal of the judgment.

State may prove offense by circumstantial evidence. While it is incumbent upon the state to prove every element of an offense, the proof may be by evidence of circumstances that are sufficient to support inferences of guilt of the offense found by the verdict.

'Manslaughter' not degree of murder, but grade of unlawful homicide. 'Manslaughter' is not a degree of murder, but it is a grade or degree of unlawful homicide.

Voluntary intoxication does not excuse act which in absence of insanity criminal. Voluntary intoxication, even though the immediate effect of it is to render the person unconscious for the time of what he is doing or to render such person temporarily insane, as distinguished from a fixed or settled frenzy or insanity, either permancnt o intermittent, does insanity either permanent or intermittent, does absence of such unconsciousness or temporary insanity, would be criminal. This is the general rule applicable wherever the voluntary doing of the wrongful act constitutes the crime or a particular or specific intent is not an essential or constituent element of the offense; and in all such cases a person who is at the time of the commission of the act unconscious or insane as the immediate consequence of voluntary intoxication is liable in the same manner and to the same degree that he would be if sober.

Evidence held sufficient to sustain conviction for manslaughter. There is ample evidence to sustain the verdict.

COUNSEL

Robert W. Davis and J. Asakiah Williams, both of Gainesville, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.

OPINION

WHITFIELD J.

Upon an indictment charging murder in the first degree by shooting Lonnie Studstill in Levy county, Fla., Floyd Folks was convicted of manslaughter and took writ of error to a judgment imposing a seven-year sentence.

A motion was made for a change of venue upon the ground that it is not practicable to obtain in the county a fair and impartial jury for the trial of the case, because the prejudice against the defendant is so widespread and acute, and because the deceased 'belonged to a family the members of which, either by blood or marriage, is very numerous, and there is scarcely a locality in the county where some one of said family, either of affinity or consanguinity, does not reside.' The motion was supported by affidavits of 'opinion that it would be impractical to get an impartial jury in the said county to try the said Folks on said charge or to give to the said Folks a fair and impartial trial.'

The court overruled the motion, and it does not appear that there was any difficulty in securing 'an impartial jury,' as is required by the Constitution and contemplated by the statutes under which the jurors are selected. No abuse of discretion or unfairness to the defendant is shown by the refusal to change the venue. Adams v. State, 28 Fla. 511, 10 So. 106. 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 record that the trial court acted unfairly and abused such discretion. Chisolm v. State, 74 Fla. 50, 76 So. 329.

It appears that the decedent, the accused, and his brother made a round-trip journey in an automobile and procured a quantity of moonshine, an intoxicating beverage, of which they partook pretty freely. On the journey a pistol was borrowed by the accused, and at another place cartridges for the pistol were bought by the accused. But it does not appear that this was done with any ill will or unlawful intent towards the deceased. Before the trio on their return reached the place from which they started, the deceased, who sat on the front seat with the accused, was shot in the chest, and the accused, who was driving the automobile, was shot in the lower right side. Another person was met on the road and induced to drive the car for a mile or more to the starting point because of the wounded driver. Upon arrival at the initial point the deceased was taken from the car and died within an hour afterwards.

A physician testified:

That when he was called to the automobile 'Floyd recognized me, but Lonnie said nothing, and I saw that Lonnie was dying. I proceeded to the other side of the car. With the assistance of some one that came up, we helped him just inside the store door and laid him on the counter, and there we administered first-aid help to him, and in that time they had gotten Floyd through the store, back into my office, which is in the rear of the building. At that time I asked Lonnie J. Studstill where he was shot, and he says, 'There' (indicating chest), just put his hand up there, and I examined him there, and found there was a bullet wound in his chest. It was about 1 3/4 inches just right of the median line, below the fork of the breast bone. I did not make an examination of wound to see the direction it went until after he was dead and we laid him out. I saw and made an examination after he was dead. I found that the would went right straight in. In my opinion, from what I saw of the wound, he was shot from the front. The bullet did not go through. It lodged in the body. That wound caused death. Other than that shot in the chest, he was shot between--in the three off fingers of the hand, left hand, the three off fingers. As to the nature of that wound in the hand, there was just a hole all the way through all three of those fingers, piercing through. He was not shot any place else. Q. At the time that you helped him out of the car and carried him to your office, as you testified, did he or not ask you what his condition was? A. He did after I got him inside. After he asked me, I stated to him what his condition was. My answer was that he was in a desperate condition; that his chances were ninety-nine to one against him. * * * In my opinion that wound caused his death. It was sufficient to cause death. The wound in the chest was sufficient to cause death.'

Testimony was adduced that----

'Mr. Alford, before Lonnie died some three or six minutes, warned and cautioned Lonnie Studstill that he was going to die. He says to Lonnie Studstill, 'Lonnie, you are going to die, you know you are going to die; you ain't going to be but a few minutes about it; tell us who shot you;' and he said 'Floyd Folks.' Lonnie said, 'Floyd Folks.' I judge he lived three to six minutes after that statement. * * * He did not say whether Floyd shot him on purpose or by accident. * * * He asked me several times to stay with him.'

It is contended that the admission over objection of the testimony as to what the deceased said about who shot him was reversible error because it was not properly admissible as a dying...