Hahn v. State
| Decision Date | 15 April 1952 |
| Parties | HAHN v. STATE. |
| Court | Florida Supreme Court |
Harry P. Johnson, Tavares, Scofield & Bradshaw, George W. Scofield and D. J. Bradshaw, all of Inverness, for appellant.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
On April 18, 1951 Wilson Hahn was indicted in the Circuit Court of Sumter County for first degree murder of Albert Phillips by shooting him with a pistol. Trial by jury was had on June 11-13 resulting in his conviction of first-degree murder without recommendation. Motion for new trial was overruled and the death penalty was imposed by the Court. He brings this appeal and assigns numerous errors for reversal of the judgment.
Preliminary to the trial a motion to quash the indictment and a motion for change of venue were made, both of which were overruled. Errors are assigned attacking each of these rulings.
The motion to quash attacks the appointment by the State's Attorney, with the consent of the Court, of Mr. Carroll W. Fussell, a member of the Bar of Sumter County, as an assistant in the prosecution of the case. It charges that the appointment violated Sec. 27.18, F.S.1949, F.S.A. and that Fussell was present in the Grand Jury room during their deliberations at the time they inquired into the charge against the defendant. It is, however, without allegations that he was present while they voted or that he urged or requested the finding of an indictment against the defendant. The approval of the appointment was within the discretion of the Circuit Judge. The motion was without merit and there was no error in overruling it. Miller v. State, 42 Fla. 266, 28 So. 208; White v. State, 121 Fla. 128, 163 So. 403; Hulst v. State, 123 Fla. 315, 166 So. 828; Holloman v. State, 140 Fla. 59, 191 So. 36.
The defendant entered his plea of not guilty on June 1. The motion for change of venue was not filed until June 7 although the case had been duly set for trial on June 11. Nothing of consequence is alleged to have occurred after June 1 and no cause was shown for failure to file the motion not less than 10 days before the trial date as required by Sec. 911.03, F.S.1949, F.S.A. Moreover, its allegations of fact that defendant coud not receive a fair trial because of prejudice against him among the residents of Sumter County, if proven, were deficient in substance to sustain the motion. Finally, the ruling of the Court was attested by the qualification of a jury on the first day of the trial after examination of only 38 veniremen on voir dire. Of those challenged, 4 had fixed opinions, 1 was discharged by agreement of counsel, 5 because of their opposition to capital punishment, and 8 excused because of peremptory challenges by the defendant. In view of the insufficiency of the allegations of the motion and the readiness with which the jury was qualified, aside from the fact that it was filed too late, it seems clear that its grounds were without merit and the Court did not err in denying it. Patterson v. State, 157 Fla. 304, 25 So.2d 713; Ferguson v. State, 158 Fla. 345, 28 So.2d 427.
Under assignments included in questions 7 and 8 posed by appellant in his brief--did the Court's refusal to permit the recall of State witness, James Kimbrough, for further cross-examination, after the State had rested its case, to enable defendant to lay the predicate for impeachment of the witness constitute harmful error. In the course of the trial while the State was offering its evidence in chief the witness, Kimbrough, night policeman of Wildwood, an eyewitness to the slaying and the only person having seen and heard all of the altercation between the defendant and the deceased prior to and at the moment of the shooting, testified that the deceased Phillips at that moment was doing 'nothing, he was just standing where he had been standing' and that he made no advance on defendant. Obviously, the chief purpose and tendency of this testimony was to prove that Hahn did not kill in self-defense. The witness was excused after cross-examination by defense counsel without laying the predicate for impeachment of this statement. Later while the defendant was putting on his case he attempted to prove by witness, Roscoe Hamilton, that Kimbrough on the return from taking defendant to jail at Tavares shortly after the shooting, had told him (Hamilton) that 'when Phillips reached for his pocket, Hahn pulled a gun and started to shoot'. Hamilton so testified in the absence of the jury in answer to the questioning of defense counsel. The State objected to the witness answering this question before the jury and the Court correctly sustained it because no predicate for impeachment had been laid. After further proceedings defense counsel requested the recall of Kimbrough for the purpose of asking him whether he made the statement attributed to him by Hamilton. The Court denied the request but stated he could be recalled as his witness. This offer was declined. The request did not strictly comply with the practice for laying the predicate for impeachment but that was the purpose of defense counsel is clearly evident.
To make clear the materiality of impeachment and give perspective to the incident of the slaying preceding events involving the parties should be briefly recounted. Phillips became imbued with the idea that Hahn had enticed his wife away from him and broken up his home; that they planned to kill him for his life insurance. (The record is devoid of evidence that such had occurred other than as appears in Phillips' statements, obviously, based on hearsay.) There was testimony to the effect that on several occasions Phillips had sought out Hahn and accused him or threatened him. On one of them about a week or 10 days before the slaying he provoked and brought on an altercation exhibiting an open knife. Hahn testified that a week or 10 days prior Phillips had threatened to kill him if he crossed his path again. On the night of the slaying Hahn and Clardy, a friend, attended a picture show in Wildwood. At the conclusion of the picture Phillips who was also there left the theatre ahead of Hahn and...
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