Frazier v. State

• Citation: 107 So.2d 16
• Parties: John FRAZIER, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 21 November 1958
• Court: United States State Supreme Court of Florida

Page 16

107 So.2d 16

John FRAZIER, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida.

Nov. 21, 1958.

Rehearing Denied Dec. 16, 1958.

Ira J. Carter, Jr., Gainesville, for appellant.

Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.

O'CONNELL, Justice.

John Frazier appeals from a judgment and sentence of death for the murder of Lacie Pearman. Defendant is a negro, as was the deceased.

Lacie Pearman lived some distance from the rural home of defendant and Annie Lee Frazier, who lived with him as his wife. The sister of Annie Lee Frazier, Willie Mae Perry, lived adjacent to the Fraziers. Willie Mae and Lacie were cousins.

On a Saturday afternoon Lacie, the Fraziers and Willie Mae Perry went to town and returned to Willie Mae's house. Later that afternoon and while Lacie was still at the home of Willie Mae Perry, defendant departed his home telling his wife that he had to check some fish lines in a nearby river. He returned to his home after dark. His wife noticed a scratch above one eye,

After defendant departed to check his fish lines, Lacie left in her car to go home by a route which required her to open and go through three fence gates. She had promised to return to Willie Mae Perry's house the next morning.

She did not return as promised and Willie Mae went to determine why she did not do so. She found Lacie's car, with the groceries she had purchased on Saturday still in the car, parked just inside the fence gate nearest Lacie's house. However, Lacie could not be found.

The Sheriff was notified and came to the scene, but because of darkness no search was made that day, which was Sunday.

The next day the neighbors were organized and a search conducted under direction of the Sheriff.

In the undergrowth near the fence gate at which Lacie's car was found, a trampled or beaten down area was found. It was described in evidence as indicating that a person had stood or sat there for some time.

Tracks of a man and a woman were found leading from Lacie's car. At one point a fence had been pushed down and on this fence a piece of cloth, later identified as being of the same color and material as the dress Lacie was wearing, was found snagged on the fence. When she was later found it was shown that a piece of the dress worn by Lacie was torn out.

The tracks led to another spot where there were signs of a struggle or scuffle. The tracks then led to the bank of the Sante Fe River at a place called Johnson's Hole. At this place the banks of the river were steep and about eight feet above the water level.

A short distance downstream Lacie's body was found in the water engaged in a tree which had fallen into the stream. The evidence shows her death to have been caused by drowning.

Defendant, who had taken part in the search and who was present when Lacie's body was discovered, was taken into custody at the scene by a Deputy Sheriff who told defendant that the authorities wished to question him about the case and that he was a suspect in the case.

The Deputy Sheriff, Mr. Sweat, and Mr. Deckle, one of those who had engaged in the search, got into the front seat of the deputy's car with the defendant on the rear seat.

According to Deputy Sweat's testimony at the trial the following events transpired on the way to the jail: he asked the defendant if he knew anything about the case to which defendant replied that he did not. Thereafter, the Deputy said:

'John, we have enough information on you we could have picked you up last night, so you just as well get right and tell us what you know about the case, it will save us a lot of trouble.'

defendant then told the deputy and Mr. Deckle that he did know something about it; that he had waited in the bushes near the gate near Lacie's home; that when she got out of her car, opened the gate and drove her car through, he came out of the bushes 'taken her and wronged her and carried her to the river to the Johnson Hole'; that the deputy stopped the car and put handcuffs on the defendant and took him to the jail; that the defendant said he wanted to talk to the Sheriff and the State Attorney who were called by the deputy; that when the Sheriff and the State Attorney arrived defendant told them he wanted to make a statement; that a court reporter was called and when she arrived the defendant did make a statement; that the defendant was offered no hope of reward or escape from punishment was not threatened or abused in any way and that he made the first statement to him and Mr. Deckle and the later statement to the Sheriff and State Attorney freely and voluntarily. No objection was made by defendant to the testimony of Deputy Sweat.

The statement made by defendant to the Sheriff and State Attorney was reduced to writing but was not signed by defendant. In this statement defendant told essentially the same story as recited by Deputy Sweat, but in greater detail. In the last statement he stated that he had forced Lacie to submit to him at knife point and that he had made her go to the river bank and had pushed her in.

After defendant made his statement to the Sheriff and State Attorney he agreed to go with them to the scene of the crime and re-enact it for them, which was done. Following this he took them to an area where a pocketbook, identified as belonging to Lacie, was found. According to the testimony of the Sheriff the defendant stated that he had removed Seven Dollars from the pocketbook before throwing it in the bushes. The Sheriff testified as to the re-enactment of the crime and his testimony, in substance, coincided with the statement of the defendant as transcribed and the testimony of Deputy Sweat in which he repeated the statement made to him by defendant.

Defendant raises four questions on appeal.

In the first question defendant, a negro, says he was denied equal protection and due process of law, contrary to the Federal Constitution, in that members of his race were unlawfully excluded from the grand jury which indicted him and the petit jury before which he was tried and convicted.

This question was raised for the first time in defendant's assignments of error, and is argued in defendant's brief. On oral argument before this Court, defendant's counsel presented affidavits which state that there are no negro voters in Union County, in which County the defendant was indicted and tried.

We agree with the State, which contends that we cannot now consider the matters raised by defendant in his first question. Section 905.05, F.S.A. decrees that no objection to a grand jury may be raised by plea or otherwise after the grand jurors have been empaneled and sworn. It is true that in State v. Lewis, 1943, 152 Fla. 178, 11 So.2d 337 this Court said that 'time does not run before the indictment is found', but it said further at page 339 of 11 So.2d:

'* * * We do not set aside the rule previously enunciated by this Court, that issues of this kind must be seasonably presented and a ruling on them secured * * *.'

Therefore, as pointed out by the State, no ruling having been secured by the defendant by the trial court as to the composition of either the grand jury or the petit jury, there is no action, request, or ruling had or made in the proceedings below properly before us for review. It is to be noted here that the defendant does not contend that negroes were arbitrarily, systematically or unlawfully excluded from the two juries because of their race, rather the affidavits presented merely reflect that there were no negro voters in the subject County, and no negroes on the juries.

Defendant next questions a charge given to the jury in the following words:

'And the court instructs you that a homicide immediately following the commission of one of the crimes just enumerated (those crimes enumerated included rape), for the purpose of concealment, will be deemed to have been committed in the perpetration thereof.'

This charge followed immediately a charge in which the court instructed the jury that:

'The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping, shall be murder in the first degree.' (This charge tracks Sec. 782.04, F.S.A.)

The defendant contends that the charge objected to by him was erroneous and harmful because 'there was no premeditation proven and if there was any rape preceding the drowning of Lacie it had long been consummated prior to the drowning.'

The defendant was charged in the indictment only with effecting the unlawful death of Lacie by drowning and by premeditated design, not with murder in the perpetration or attempted perpetration of rape.

However, in the opening statement the State announced that it would prove that defendant committed murder either in the perpetration or attempted perpetration of rape, or by premeditated design.

We have carefully reviewed the record and find sufficient evidence to support a finding by the jury that the killing was by premeditated design. In view of this the charge complained of cannot be said to be harmful, even if it were erroneous.

We make it clear, however, that we do not hold the charge to have been erroneous under the facts of this case. While we apparently have not decided the question previously in this State such a charge has been upheld in at least one other jurisdiction. See Commonwealth v. Osman, 1933, 284 Mass. 421, 188 N.E. 226. Also see 40 C.J.S. Homicide § 21(b), p. 870.

The third point raised by defendant submits that the trial court erred in admitting into evidence the transcript of the statement made by the defendant to the Sheriff and the State Attorney and testimony of the Sheriff and others as to what was said and done at the re-enactment of the crime by the...