Fudge v. State

Citation75 Fla. 441,78 So. 510
PartiesFUDGE v. STATE.
Decision Date09 March 1918
CourtUnited States State Supreme Court of Florida

Error to Circuit Court, Escambia County; A. G. Campbell, Judge.

E. J Fudge was convicted of murder in the first degree, and he brings error. Reversed and remanded for further proceedings.

Syllabus by the Court

SYLLABUS

When the testimony in a criminal case is purely circumstantial and merely raises a suspicion that the accused may be guilty, it will not sustain a conviction, and in such case it is error to deny a motion for a new trial.

COUNSEL Nelson & Laird, of Pensacola, for plaintiff in error.

Van C Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen for the State.

OPINION

SIMMONS Circuit Judge.

The plaintiff in error was indicted and tried in the court below for the murder of his two little girls, Ethel and Tennie aged seven and ten years, respectively. The trial resulted in a verdict of guilty of murder in the first degree with a recommendation of mercy.

There are numerous assignments of error, the great majority of which are abandoned here, and as to those remaining which are predicated upon rulings of the trial court we find no reversible error. The principal contention of the plaintiff in error is that his conviction is not sustained by the evidence.

The record is voluminous, but the outstanding features of the evidence are few and simple. While there are some conflicts in the testimony, these arise largely at nonvital points. The real conflict hangs upon the construction to be placed upon the testimony.

The plaintiff in error is a widower, and until the happening of the tragedy out of which this case arises was the father of three motherless children; these children being the little girls he is alleged to have killed and a boy, Bascom Fudge, about eight years old. Early in the year 1916 he moved from Nashville to Pensacola and put his children in charge of their aunt, a sister of their dead mother; the two families residing together until about ten days before the little girls were killed, when the aunt and her husband moved out into the country to McDavid.

On the morning of June 27, 1916, the plaintiff in error was without work, and had only a few cents in money. He had some simple food in the house, of which he prepared breakfast, with the assistance of one of the children. As to which one of the children helped him the testimony is in conflict. He says Tennie helped him. The little boy says he is the one who helped.

The little girls had been slightly sick for two days, complaining of some gastronomical symptoms, and while the father was engaged in the preparation of breakfast he sent Bascom over to another aunt's house to get some sweet milk for them. The aunt had no sweet milk, and they proceeded with the breakfast they had. Tennie came to the table, but as to whether or not she ate anything the testimony of the father and son is in conflict; the former saying she did, and the latter that she did not. Ethel did not come to the table.

Soon after breakfast the father took a plane (he being a carpenter by trade) and some of his dead wife's clothes, and started down town, accompanied by Bascom. The dog followed them to the gate, whereupon the father told Bascom to walk along while he should go back and place the dog in a shed in the rear of the house. The boy loitered along for a few yards, when the father returned and they proceeded down town.

The father sold the clothing to some women along the way, and sold the plane at a cabinet shop near the water front. Then he proceeded to a service club and drank a bottle of beer. While at the club he was told that work awaited him at the navy yard, he having theretofore applied for such work, and received instructions to report at the and received instructions to report at the of the forenoon and a large part of the afternon around the fishhouse on Palafox Wharf helping some colored men to catch a large shark, assisting in cutting off its tail, photographing it, and calling people's attention to it. He gave Bascom some money with which to get a lunch, but seems to have eaten nothing himself.

In the late afternoon the father and son returned home and found the house closed. The father sat down upon the front steps and sent Bascom to his aunt's house to look for the girls. They were not at their aunt's, and then he sent him down to the bayshore park to look for them. They were not at the park, and, when the boy so reported, his father put him through a window and had him unlock the door from the inside. It was then near sunset. Inside the house they found the dead bodies of the two little girls prone upon the floor, a 22-caliber bullet hole through the body of each in the region of the heart, and Bascom's 22-caliber rifle lying upon the floor near the elder one. Tennie was shot directly through the heart, and was cold and stiff. Ethel was shot through the chest just below the heart and a little to the right, and was not quite so cold and stiff.

Neighbors were called and the boy was sent to notify his aunt. About the time the first neighbors were arriving, the father took from a book on a table in the room three notes, all in Tennie's handwriting, which notes are here set forth:

'Pensacola, Fla., June 16, 1916.
'Dont blame Papa for what I have done as Papa is out of work and got no money for us to live on we are better off dead than living as we have lived the last week. Aunt Bee will be sorry for what she has done us it will all come back to her on Judgment Day.
'Tennie Fudge.'
'Pensacola, Fla., June 24, 1916.
'Aunt Bee: Ethel and I rather be dead than go to an orphans' home because we know how we would be treated. Bascom can look out for himself but we cant. We have been treated like little negroes here, we know how we would be treated there. We can hardly turn around without being whipped or scolded.
'Goodby,

Ethel and Tennie.'

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9 cases
  • Cochran v. State, 67972
    • United States
    • United States State Supreme Court of Florida
    • July 27, 1989
    ...125 So. 352 (1930); Davis v. State, 90 Fla. 816, 107 So. 245 (1925); Holton v. State, 87 Fla. 65, 99 So. 244 (1924); Fudge v. State, 75 Fla. 441, 78 So. 510 (1918). See also discussion and cases collected in Jones v. State, 466 So.2d 301 (Fla. 3d DCA 1985) (Hubbert, J., dissenting; appendix......
  • Jones v. State
    • United States
    • Court of Appeal of Florida (US)
    • February 26, 1985
    ...testimony that he killed the deceased in self-defense not properly negated by state's proof; murder conviction reversed); Fudge v. State, 75 Fla. 441, 78 So. 510 (1918) (evidence adduced at trial that defendant's children committed suicide not properly negated by state's proofs; first degre......
  • Gardner v. State
    • United States
    • United States State Supreme Court of Wyoming
    • April 4, 1921
    ...produce conviction beyond reasonable doubt. State v. Robinson, 103 A. 657. Where it merely raises suspicion it is insufficient. Fudge v. State (Fla.) 78 So. 510; State McCarthy (Mont.) 92 P. 521; State v. Taylor (Mont.) 153 P. 275. Where two persons have the same opportunity to commit an of......
  • Lee v. State
    • United States
    • United States State Supreme Court of Florida
    • June 26, 1928
    ...... relied upon to establish the controverted fact. If any fact. essential to a conviction is not legally established to a. moral certainty, the evidence is inconclusive, and cannot be. said to be sufficient in law to satisfy the mind and. conscience of the jury. Fudge v. State, 75 Fla. 441,. 78 So. 510; Davis v. State, 90 Fla. 816, 107 So. 245; Asher v. State, 90 Fla. 75, 105 So. 140;. Myers v. State, 43 Fla. 500, 31 So. 275. . . If we. assume the corpus delicti to be sufficiently established,. then the other circumstances in evidence might ......
  • Request a trial to view additional results

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