Rehearing
Denied June 20, 1940.
En
Banc.
Error
to Circuit Court, Palm Beach County; C. E. Chillingworth
Judge.
Herbert
Goddard was convicted of murder in the first degree, and he
brings error.
Affirmed.
OPINION
BUFORD
Justice.
Writ of
error brings for review judgment of conviction of murder in
the first degree without recommendation to mercy.
The
plaintiff in error presents for our consideration nine (9)
questions, stated as follows:
'Question
No. 1. Is the verdict of the jury in this cause of murder
in the first degree supported by the evidence adduced at
the trial and by the instructions or charge of the
Court?'
'Question
No. 2. Was it not reversible error for the Court to charge
the jury under the evidence adduced at the trial that the
unlawful killing of a human being when committed in the
perpetration of or in the attempt to perpetrate any rape
was murder in the first degree in view of the fact that the
evidence herein showed beyond a reasonable doubt that the
alleged raping of the deceased by the defendant took
place hours before the actual killing of the deceased?'
'Question
No. 3. Was it not highly prejudicial to this
defendant, and reversible error, for the Court to admit
into evidence over the objection of the defendant
State's Exhibit No. 1, to-wit: a lock of hair which ahd
not been properly identified and could serve only to
prejudice the minds of the jurors against this
defendant?'
'Question
No. 4. Was it not reversible error and highly prejudicial
to this defendant for the Court to refuse to instruct the
jury upon motion of the defendant to disregard a remark by
the State Attorney during the selection of the jury and
within the hearing of all jurors summoned for the trial of
this case that 'brutality was evidence of
premeditation'?'
'Question
No. 5. Was it not reversible error and highly prejudicial
to this defendant for the Court to permit the solicitor for
the State to argue to the jury that this defendant was a
'low down scoundrel' and 'skunk'; that
'At no time has there ever been an ounce of remorse in
the no good black heart of that scoundrel' that 'He
ran all over the country with a woman he wasn't married
to under an assumed name;' that 'he had five six,
seven or ten or fifty names'; that 'He is the
biggest beastial, I would like to say what I am
thinking'; * * * 'What a shiek he thinks he
is'; that 'On an occasion of this sort sometimes
our duty becomes a sort of a duty that makes a man's
heart feel that that sort of a duty is once in a life time,
that that duty comes to him to do a public service, in fact
it is a distinct privilege in this case.' 'So it
will go out to the nation at large and Palm Beach County
that when a man violates little girls like this man has
done he should suffer the extreme extent of the penalty of
the law'; that 'The deeds of his life, his many
escapes from the toils of the law has caused him to believe
that the law protects me, if they send me to jail I can get
loose, what do I care about that. I have been there before,
been there lots of times, will be there again
if you let me out this time.' also, 'Gentlemen, you
have the right to return a verdict rewarding him with the
extreme penalty. If you don't the courts of Palm Beach
and Florida are disgraced before the entire United States
at large and you and all of us would feel justly ashamed of
ourselves that a man of this sort should go to jail and
that alone.' Also 'Every one of you are not
offering protection to your own daughters and your own
children that they should have'; further that you
twelve men have got to stand up and say that can't
happen in Palm Beach County, that people don't have to
take the law in their own hands and lynch such a man as
that skunk over there'; also, 'if I make up my mind
to take Frances's life as he did, that is sufficient
premeditation, as the Court will charge you'; also
'Palm Beach County, The State of Florida, and the whole
United States is looking upon this particular case with a
great deal of interest. They would like to know whether or
not a man can come here out of the State, a renegade or a
deserter, or whatever you may call it, at least a parole
violator from Colorado with the FBI looking for him with
him knowing he had nowhere to turn, if he is apprehended he
will be sent back to jail'; and 'we sincerely hope
that you will come back into this court room very shortly
and give the verdict that everybody wants you to do, that
everybody feels is fair'; and finally, 'So if you
didn't lynch him, as Mr. Salisbury says was threatened
to be done, that isn't necessary in Florida, the law
will do it as it is justified.', when said argument was
not supported by the evidence and was designated solely to
excite the passions and influence the minds of the jury and
prejudice them against this defendant?'
'Question
No. 6. Was it not reversible error for the Court to refuse
to give defendant's requested charge No. 1 in the language following, to-wit: 'You are
instructed, gentlemen, that although the law does not
require premeditation or deliberation for any particular
length of time to show a premeditation or an intent to
kill, it must be a sufficient length of time to enable the
slayer to form a distinct and conscious intent to kill;
unless you believe from the evidence in this case, beyond
any reasonable doubt, that the defendant had a sufficient
time to form premeditated design to kill the deceased, or
that the killing was in the perpetration of or attempt to
perpetrate rape, then you cannot under the law find the
defendant guilty of murder in the first degree, and you
must by your verdict reduce the grade of the homicide
accordingly.', when said charge was supported by the
evidence?'
'Question
No. 7. Was it not reversible error for the court to refuse
to give defendant's
requested charge No. 3 in the language following, to-wit:
'The Court instructs you, gentlemen, that something
more than mere intention to kill must be shown to establish
premeditation; before you can convict the defendant of
murder in the first degree, you must be satisfied from the
evidence beyond a reasonable doubt that the defendant not
only had an intention to kill the deceased, but that he
actually had a premeditated design to kill her.', when
said charge was supported by the evidence?'
'Question
No. 8. Was it not reversible error for the Court to refuse
to give defendant's requested charge No. 15, in the
language following, to-wit: 'You are instructed,
gentlemen, that although under the law of this State, the
unlawful killing of a human being when committed in the
perpetration of or in the attempt to perpetrate rape is
murder in the first degree, such unlawful killing must be
established beyond a reasonable doubt to have
taken place during the commission or attempt to commit
rape, and should it appear from the evidence that the
defendant raped Frances Dunn prior to the actual killing,
this fact alone does not make the killing murder in the
first degree.', when said charge was supported by the
evidence?'
'Question
No. 9. Was it not reversible error for the Court to refuse
to give defendant's requested charge No. 18 in the
language following, to-wit: 'You are instructed,
gentlemen, that proof of the brutal or revolting killing of
Frances Dunn by the defendant but without any premeditated
design to effect her death prior to such brutal or
revolting acts cannot constitute the defendant guilty of
murder in the first degree no matter how brutal or
revolting the circumstances of the killing might be and
unless you are satisfied beyond a reasonable doubt that the
defendant had entertained in his mind a premeditated design
to effect her death prior to the commission of the acts
which caused her death, you cannot find him guilty of
murder in the first degree under the law.', when said
charge was supported by the evidence?'
It
could serve no useful purpose for us to detail the revolting
facts disclosed by the transcript of the record of the
evidence in this case. It is sufficient to say that there was
substantial evidence to support the verdict of murder in the
first degree because the evidence is sufficient to warrant
the conclusion by the jury beyond a reasonable doubt that the
unlawful homicide was committed both of and from a
premeditated design to effect the death of the person killed
and also that the murder was perpetrated in an attempt to
commit the crime of rape.
So the
first question must be answered in the affirmative.
The
second question must be answered in the negative because
while the evidence was sufficient to show that the accused had perpetrated rape, or had attempted to
perpetrate rape, on the deceased several hours before the
homicide, it is also sufficient to warrant the conclusion
that a second such assault was made at the time of the
homicide.
In
considering the third question we must take into
consideration and apply the provisions of Section 2812
R.G.S., section 4499, C.G.L. which is as follows: 'No
judgment shall be set aside or reversed, or new trial granted
by any court of the State of Florida in any cause, civil or
criminal, on the ground of misdirection of the jury or the
improper admission or rejection of evidence or for error as
to any matter of pleading or procedure, unless in the opinion
of the court to which application is made, after an
examination of the entire case it shall appear that the error
complained of has resulted in a miscarriage of...
