Graham v. State
| Decision Date | 07 November 1956 |
| Parties | Marcy GRAHAM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
William O. O'Donnell, Orlando, for appellant.
Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee.
In this case the issues were formed by a plea of not guilty to an information containing six counts in which the appellant was charged with as many violations of the law denouncing lottery operations. The trial judge upon motion of the appellant directed a verdict of not guilty of the offense alleged in the fifth count; the jury found the appellant guilty as charged in the first and fourth counts; and the appellant was sentenced to serve a term in the state penitentiary.
With this preface we go direct to the first question posed by the appellant, i. e. the propriety of the judge's rulings with reference to a confession. In the progress of the trial, the county solicitor indicated to the court that he proposed to offer testimony in the nature of a confession whereupon the court told the jurors that they would be excused and they retired from the courtroom.
The solicitor then propounded to the chief of police some preliminary questions with reference to the place where the witness and another police officer had talked with the appellant about the appellant's connection with lotteries. Next followed three questions by the solicitor and three answers by the witness relative to the circumstances surrounding the conversation between the officers on the one hand and appellant on the other. They follow: '
The witness then related the questions he asked the appellant and the replies given about the appellant's participation in lotteries. According to the witness the appellant responded freely about picking up bolita tickets, and so on, for a period of many years.
The appellant in his question asks 'Whether or not it was error for the trial court, over objection, to allow the alleged admission or confession of the appellant to go before the jury, before first hearing, in the absence of the jury, all the evidence on each side respecting the manner in which the confession or admission was obtained, and leaving to the province of the jury the question of whether or not the confession or admission was free and voluntary.'
If the circumstances implied in the question were present, we would be inclined to reverse because the procedure followed did not harmonize with our decisions on the proper method of admitting confessions. Parenthetically, we are not aware of the need to enter into a discussion of any distinction that may exist between the treatment of confessions and admissions.
By Sec. 12 of the Declaration of Rights of the Constitution of Florida, F.S.A., and the Fifth Amendment of the Constitution of the United States, it is guaranteed that 'No person shall be * * * compelled in any criminal case to be a witness against himself * * *.' Testimony by a defendant against himself in a criminal case is, in effect, accomplished when his confession is introduced at his trial. But he can waive the right by a free and voluntary disclosure of guilt. Williams v. State, 156 Fla. 300, 306, 22 So.2d 821.
We have detailed how such testimony may be admitted. The judge is vested with the discretion, which he must exercise with great care, of determining the question whether or not the confession was freely and voluntarily give and his inquiry must be conducted in the absence of the jury. It is his duty to hear all evidence offered by the state and the defendant relative to the manner in which the confession was obtained. Of course, if he decides that the confession was coerced, that ends the matter; if he decides that it was free and voluntary and therefore admissible, the defendant has the right to have the testimony repeated before the jury, not that they may pass on its admissibility, but that the jury may consider the surrounding circumstances in determining what weight should be given it. Bates v. State, 78 Fla. 672, 84 So. 373; Hearn v. State, Fla., 54 So.2d 651.
In tracing the steps taken in the trial of the appellant we found that the prosecuting officer quite properly gave warning that he was going into the subject of a confession, and that the judge promptly excused the jury.
But we do not find support for the implication that despite appellant's protest, the court allowed the jury to hear of the confession after he had considered only part of the testimony that could have been offered with respect to the manner in which the confession was obtained.
Following the testimony to which we have alluded, the appellant's attorney interrogated the chief of police...
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