Harrison v. State

• Decision Date: 18 December 1942
• Citation: 12 So.2d 307,152 Fla. 86
• Parties: HARRISON v. STATE.
• Court: Florida Supreme Court

12 So.2d 307

152 Fla. 86

HARRISON v. STATE.

Florida Supreme Court

December 18, 1942

On Rehearing Feb 19, 1943.

On Motion for Clarification March 16, 1943.

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

Ben F. Barnes, of Marianna, and Clyde W. Atkinson, of Tallahassee, for appellant.

J. Tom Watson Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen., for appellee.

THOMAS, Justice.

In obedience to a judgment of this court, filed 20 January 1942, reversing the conviction of the appellant Cellos Harrison, the case was again tried, and again he was found guilty of murder in the first degree and sentenced to death by electrocution. Most of the salient facts were detailed in that decision Harrison v. State, 149 Fla. 365, 5 So.2d 703, and the confession of the defendant was there given verbatim. There is little need to repeat here all of the circumstances of the foul murder of one Johnnie Mayo because as developed in the second trial, they were substantially the same as in the first one.

The appellant and others were arrested immediately following the crime and were released. The following year he and an acquaintance, both suspects, were apprehended and the appellant was placed in the jail at Quincy, in an adjoining county, while the other prisoner was incarcerated at Marianna. This procedure of separating prisoners to prevent fabrication by them of consistent defenses is not unusual and has long been practiced.

Later, the appellant was removed to the jail at Tallahassee by the sheriff of Jackson County, one of his deputies and a special investigator in the employ of the State. In the course of this journey, a distance of about twenty-five miles, a conversation was held between the investigator and the defendant and upon arrival at the jail in Tallahassee the appellant made the confession which was thereupon reduced to writing and signed by him.

The discussion in the former opinion centered largely on the law governing the introduction of this sort of evidence, and the gist of the decision was that in a case where the life of the defendant was at stake and conviction could not, in all probability, be obtained in the absence of the confession it was the duty of the trial judge to charge the jury on that particular aspect of the testimony even though there was no request on the part of the accused to do so.

We retain the opinion, then expressed, that conviction would not have been possible without the admission of guilt by the defendant. We have scrutinized all of the testimony, and particularly that part of it establishing the circumstances which surrounded the confession and its reduction to writing. The question of the failure of the court to give the charge is eliminated in this appeal because five distinct instructions on the subject, all of them requested by the defendant, were read to the jury and, indeed, the appellant now presents no challenge to the judgment upon any ground save the sufficiency of the evidence as a whole and the admissibility and credibility of the confession in particular.

Our examination has convinced us that the trial judge scrupulously observed the decisions of this court in determining the admissibility of the confession from an examination, in the absence of the jury, of the witnesses who were present when it was given and that he was thoroughly justified in his conclusion that it was free and voluntary. After announcing his ruling the witnesses whom he had heard were reexamined so that the jury could determine, not only from the evidence itself but from the manner in which it was obtained, how much credibility could be given it. Brown v. State, 135 Fla. 30, 184 So. 518.

It is our view that no abuse of discretion was shown by the judge in performing his function of passing upon the admissibility and we have found no reason to interfere with the verdict of the jury because they were justified in finding the defendant guilty if they believed the witnesses gave a truthful account of the obtaining of the confession. The paper itself, they stated, was dictated, read and signed by the appellant. It clearly described the manner in which he had felled the deceased by crushing his head with a hammer.

We are not disposed to interfere with the judgment and, therefore, it is affirmed.

WHITFIELD, BUFORD, and ADAMS, JJ., concur.

BROWN, C. J., and TERRELL and CHAPMAN, JJ., dissent.

On Rehearing.

PER CURIAM.

On December 18, 1942, we handed down a majority opinion prepared by Mr. Justice THOMAS and a dissenting opinion prepared by Mr. Justice CHAPMAN, Justices WHITFIELD, BUFORD and ADAMS concurred in the opinion by Mr. Justice THOMAS, while Justice TERRELL and Chief Justice BROWN concurred in the dissenting opinion by Mr. Justice CHAPMAN.

In due course, petition for rehearing was filed, and on January 28, 1943, a majority of the Court concurred in the granting of a rehearing and ordered reconsideration of the cause only on the record and briefs then on file. Pursuant to such reconsideration the original dissenting opinion prepared by Mr. Justice CHAPMAN has been and is now concurred in by Mr. Justice ADAMS, Mr. Justice TERRELL and Mr. Justice BROWN, while Mr. Justice THOMAS, Mr. Justice SEBRING and Mr. Chief Justice BUFORD adhere to the original opinion and judgment prepared by Mr. Justice THOMAS. Mr. Chief Justice BUFORD has prepared a dissenting opinion which will be filed herewith.

The original opinion by Mr. Justice THOMAS now takes the status of a dissenting opinion.

The majority of the Court having concurred in a judgment of reversal based on the opinion of Mr. Justice CHAPMAN, which now becomes the controlling opinion in this case, the judgment of affirmance heretofore entered is vacated and the judgment is reversed and the cause remanded for a new trial.

So ordered.

BUFORD, C. J., and TERRELL, BROWN, CHAPMAN, THOMAS, ADAMS, and SEBRING, JJ., concur.

CHAPMAN, Justice.

The attending circumstances shortly preceding the signing of the alleged written confession by the appellant, as reflected by the record, are such as to create in my mind an abiding conviction that it was obtained by influences calculated to delude the mind of an immature and ignorant colored boy of its far reaching import and legal consequences. It is admitted that without the signed confession it is impossible to sustain the judgment of conviction and imposition of the death penalty. Poverty, like a huge stone hung about the neck, deterred the development of beneficial facts of the controversy from the moment of appellant's arrest until the death penalty was imposed.

The trial court fully discharged his official statutory duty by appointing counsel to represent this indigent appellant. The deceased Johnnie Mayo, a white man, sustained mortal wounds at his place of business near Marianna, Florida, around 9:00 o'clock A. M., February 5, 1940, and was first found in a dying condition by Raymond Speight and Red Hicks, colored men, then in the vicinity; five colored men, including appellant, were immediately arrested on suspicion and charged with the crime, but, after investigation by the authorities, were each discharged.

The appellant continued to live in the community, and sixteen months thereafter he and Jabo Pittman were arrested the second time on the same charge by an investigator sent there to ferret out the guilty party. Pittman was incarcerated at Marianna, while appellant was transferred some fifty miles away from his friends, family and other relatives, to the Quincy jail. Instructions were given not to permit the appellant to talk with any one but the jailers and be held 'incommunicado'. The investigator visited and questioned each, ultimately resulting in Pittman's discharge and appellant's indictment for the murder of the deceased.

The record reflects surrounding circumstances shortly prior to the time of signing the written confession, viz.: (a) The appellant was visited at the Quincy Jail by three deputy sheriffs of Marianna and questioned about the crime, and when he refused to talk was told 'that some dark night he would be taken out and then he would talk'; (b) the appellant knew that a mob had a short time previously stormed the Quincy Jail (in which appellant was confined) and took a negro therefrom who was by the mob lynched; (c) the appellant, shortly after the lynching, was transferred from the Quincy Jail to the Tallahassee jail, it being deducible that the transfer was made for the appellant's protection; (e) when the transfer was being made the appellant made the confession which was reduced to writing and later signed; (f) the colored boy was deprived of the benefit of advice of his relatives and counsel could not be appointed by the court under the law until he had been indicted; (g) the appellant was handcuffed and placed on the rear seat of an automobile with the investigator, while officers on the front seat drove the car at a high rate of speed from Quincy to Tallahassee; (h) it is deducible that the car was driven at a high rate of speed for the alleged protection of the appellant; (i) the investigator told appellant (when being transferred) that he had read a death warrant to a colored boy named 'Slim', an acquaintance of the appellant, whom the appellant had recently seen at Cottondale a free man; (j) the investigator also told appellant if he would talk he would not get more than a life sentence and possibly less, and 'talk' in this instance to the appellant meant a confession, which he shortly thereafter made to the investigator; and, on reaching Tallahassee, it was drafted, read and signed by the appellant; (k) the investigator advised the appellant as to his constitutional rights (but the record fails to give detailed instructions or...