Harrison v. State

• Decision Date: 20 January 1942
• Parties: HARRISON v. STATE.
• Court: Florida Supreme Court

5 So.2d 703

149 Fla. 365

HARRISON v. STATE.

Florida Supreme Court

January 20, 1942

Appeal from Circuit Court, Jackson County; E. C. Welch judge.

Ben F. Barnes, of Marianna, for appellant.

J. Tom Watson Atty. Gen., Sidney L. Segall, Asst. Atty. Gen., and Woodrow M. Melvin, Sp. Asst. Atty. Gen., for appellee.

CHAPMAN, Justice.

On June 13, 1941 the appellant, Cellos Harrison, was indicted by a grand jury of Jackson County, Florida, for the murder of Johnnie Mayo on February 5, 1940. He was adjudged insolvent and Honorable Ben F. Barnes was by the court appointed to defend Harrison. The appellant, on June 23, 1941, was placed upon trial and the following day the jury rendered a verdict of murder in the first degree, without recommendation of mercy. The trial court overruled a motion for a new trial and sentenced the appellant to death by electrocution, and from this judgment an appeal has been perfected here.

The deceased, Johnie Mayo, owned and operated a small store and filling station on the outskirts of Marianna on the road toward the Industrial School. On the morning of February 5, 1940, the wife of the deceased went to Marianna, and shortly thereafter the deceased was found lying on the floor of his store with his head in a pool of blood, and it was discovered he was suffering from a wound or blow on the head caused by a blunt instrument. He was rushed to a physician and was treated by him for a fractured skull. The deceased told the physician that a yellow negro hit him and he died shortly thereafter. The defendant came to the deceased's store about every day to buy whiskey.

Several persons, inclusive of the appellant, were arrested and questioned concerning the crime, but were each discharged.

The motive for the crime was robbery. The appellant lived in the community where the deceased operated his store, and was frequently seen about the place of business and was there within an hour of the time when the crime was committed. The appellant asserted his innocence of the crime, but on May 19, 1942, as a result of a conference between the newly elected Sheriff and a State Investigator, the appellant was re-arrested and placed in jail at Marianna; was later transferred to the Gadsden County jail, and subsequently to the Leon County jail. While at Tallahassee he signed a confession, which was admitted into evidence over the objection of his counsel.

The confession is, viz.:

'Tallahassee, Florida May 30, 1941 2-47 P M

'Living Room of County Jail.

'Statement made to State Investigator, W. H. Gasque, presence of sheriff W. B. Gause and deputy sheriffs Cecil Gatlin, Porter Holland, and Jack MacMullin.

'This statement by Cellos Harrison is made freely and voluntarily with no offer of reward or threatened in any way by any one, after being duly warned of his constitutional rights explaining that any statement he made would be used against him. He was also warned that he did not have to make a statement unless he wanted to.

"On the morning of February 5, 1940, I Cellos Harrison, went to Mr. Mayo's place about seven A. M. for the purpose of buying some liquor on arrival at the place I found Mr. and Mrs. Mayo. I had with me a jug and a carpenter's hammer. Mr. Mayo informed me that he was out of liquor but to leave my jug and come back after dark.

"Leaving the jug with Mr. Mayo I returned home. About eight-thirty or nine o'clock I went back to Mr. Mayo's carrying my hammer with me. On arrival there I found Mr. Mayo alone. I called for a package of cigarettes and as he turned to get them I struck him with the hammer at the back of the head; as he fell on the outside of the counter I struck him again with the hammer. I then turned and went behind the counter to where Mr. Mayo kept his money in a muffin pan. I carried the pan with the money into the bedroom, placing it on the bed and began putting the money in my pockets. In the excitement I left a little of the change on the bed. I secured for myself about thirty dollars (30) all silver except three or four dollars. On leaving the place I crossed the highway directly in front of the store into the woods and home.'

'Cellos Harrison

'Witness

'W. B. Gause

'Cecil C. Gatlin

'Porter Holland

'Jack McMullin Jr.'

Objections to the admission into evidence of the purported confession were seasonably made, when the trial court excluded the jury and heard testimony as to the voluntariness thereof. There is no dispute in the record as to the corpus delictibut the State's case must rest on the written confession. It was the view of the trial court that the confession was admissible. This Court, in Brown v. State, 135 Fla. 30, 184 So. 518, 523, when considering the point here presented, said:

"* * * When considering such a confession, however, trial courts should exercise great diligence to ascertain whether such questioning was so repeated and persistent and applied under such attending circumstances of intimidation or of inequality between the interrogator and the accused as to impair the freedom of will of the latter and thereby amount to compulsion. The effect as well as the form of the compulsion should be carefully weighed and considered, for a confession obtained by compulsion must be excluded, whatever may have been the character of the compulsion. Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131, decided October 13, 1924. * * *' See Deiterle v. State, 98 Fla. 739, 124 So. 47; Chambers v. State, 117 Fla. 642, 158 So. 153; Murray v. State, 25 Fla. 528, 6 So. 498; Sims v. State, 59 Fla. 38, 52 So. 198; Green v. State, 40 Fla. 474, 24 So. 537; Coffee v. State, 25 Fla. 501, 6 So. 493, 23 Am.St.Rep. 525.'

'Jack McMullin, a material witness for the State who had previously testified at this trial, was recalled for further examination and testified as follows:

'Direct Examination. By Mr. McRae: Q. Your name is Jack McMullian? A. Yes, sir.

'Q. You are a deputy sheriff of this county? A. Yes, sir.

'Q. Mr. McMullian, just recently have you had a conversation with this defendant? A. Yes, sir.

'Q. And what was this conversation? A. Do you mean the last conversation I had?

'Q. Yes, sir. A. The last conversation I had was last Friday afternoon, I think it was. It was the last time he was arraigned. Going back to the jail I asked him why he changed his plea of guilty before to not guilty this time and he said he was guilty of hitting him but not guilty of premeditated design.

'Counsel for the defendant objected to any statement, or any question that leads to any statement that might relate to some former plea.

'By the Court: 'Gentlement of the Jury, you will disregard all that has been said about my former plea in this case.'

'By Mr. McRae: Q. Make the statement again? A. He told me going to the jail that he was guilty of hitting Mr. Mayo but was not guilty of the premeditated part. That was after Mr. Barnes had been hired as his attorney.

'Cross Examination. By Mr. Barnes: Q. Where was this defendant when he made that statement? A. In the automobile.

'Q. On the highway? A. Yes, sir.

'Q. And you all were traveling back with him? A. Yes, sir.

'Q. Who was in the car with him? A. Myself and the sheriff and the negro. Just three of us.

'Q. You and Mr. Gause and the defendant? A. Yes, sir.

'Q. And he made that statement on the way back to the jail at Tallahassee? A. Yes, sir, I asked him out of curiosity why he changed it and that is what he told me.'

This witness then left the stand.

The record discloses that counsel for appellant seasonably objected to the testimony of the deputy having the appellant in custody when the damaging statement is alleged to have been made, and the trial court sustained the objection and immediately instructed the jury to disregard the statement. After the court had ruled, the State Attorney stated:

'Q. Make the statement again (which was directed to the deputy as a witness for the prosecution). A. He hold me (meaning the appellant) going to the jail that he was guilty of hitting Mr. Mayo, but was not guilty of premeditation. That was after Mr. Barnes had been hired as his attorney.'

The burden was on the prosecution, prior to admission into evidence of the admission or confession, to establish, in the absence of the jury and to the satisfaction of the trial court, that the same was freely and voluntarily made by the appellant and without hope, fear, reward, or duress.

In Clay v. State, 143 Fla. 204, 196 So. 462, 464, the rule enunciated by this Court is, viz.:

'It is well established law that when it is shown a confession was freely and voluntarily made and that no improper influences were exerted or reward held out to obtain it, the confession is properly admitted into evidence. See Bennett v. State, 96 Fla. 237, 118 So. 18; Nickels v. State, 90 Fla. 659, 106 So. 479; Green v. State, 40 Fla. 474, 24 So. 537; Browne v. State, 92 Fla. 699, 109 So. 811; Williams v. State, 48 Fla. 65, 37 So. 521; Davis v. State, 90 Fla. 317, 105 So. 843; Sims v. State, 59 Fla. 38, 52 So. 198; Gantling v. State, 40 Fla. 237, 23 So. 857; Holland v. State, 39 Fla. 178, 22 So. 298. It is likewise the law of Florida that if an alleged confession was not freely and voluntarily made, it is error to admit the same into evidence against the party making same. See Browne v. State, 92 Fla. 699, 109 So. 811; Davis v. State, 90 Fla. 317, 105 So. 843; Crawford v. State, 70 Fla. 323, 70 So. 374; Deiterle v. State, 98 Fla. 739, 124 So. 47.'

The appellant is a 22 year old colored boy living in the community where Mr Mayo was killed. He was arrested, with others, but was discharged because of the lack of evidence. He continued to reside in the same community and was about fifteen months after the date of the...