Higginbotham v. State

CourtUnited States State Supreme Court of Florida
Writing for the CourtBROWNE, J. BROWNE, J.
Citation88 Fla. 26,101 So. 233
Decision Date31 May 1924
PartiesHIGGINBOTHAM v. STATE.

101 So. 233

88 Fla. 26

HIGGINBOTHAM
v.
STATE.

Florida Supreme Court, Division A.

May 31, 1924


Rehearing Denied Aug. 2, 1924.

Error to Circuit Court, Columbia County; M. A. McMullen, Judge.

T. W. Higginbotham was convicted of murder in the second degree, and he brings error.

Reversed for new trial.

West, J., dissenting.

Syllabus by the Court

SYLLABUS

Law construed as granting change of venue without consent of accused on state's application only when impartial jury in county of crime impossible held constitutional. Limiting section 6099, Rev. Gen. Statutes, to mean that a change of venue without the consent of the accused may be granted on application of the state only when it is impossible to secure an impartial jury in the county where the crime was committed, it is constitutional.

Any attempt to deprive accused of right of trial in county of crime except where impartial jury impossible held unconstitutional. Any attempt to deprive the accused of his right to be tried in the county where the crime was committed, except where it is practically impossible to procure an impartial jury, and this practical impossibility is establishes by an actual test, or where it is impossible to procure a jury where 'there are not a sufficient number of registered voters to form a grand and petit jury,' is in violation of the Constitution.

Recess or adjournment to subsequent day in same term does not deprive judge of right to open court for business coming before it before date to which recess taken. A recess or adjournment of a court during the term, to a subsequent day in the same term, does not deprive the judge of the right to cause the court to be opened to transact any business that may properly come before it before the date to which the recess was taken.

How litigants relying on recess to certain date might be prejudiced stated. There is a distinction between an adjournment of a term of court sine die and an adjournment or recess to another day in the same term. During the recess the term continues and the court remains in existence and it is still term time. If, however, litigants relying on an order of adjournment or a recess to a certain date should absent themselves, or allow their witnesses to depart, they might have cause of complaint if the court should reconvene before the time of adjournment, and litigants forced to trial unprepared, or a case called where the litigants had no notice that court would be in session at a date earlier than that to which the recess had been taken.

Judgment and sentence entered on Sunday is void. A judgment and sentence entered on Sunday is void.

COUNSEL [101 So. 233]

[88 Fla. 27] L. E. Wade, of Green Cove Springs, for plaintiff in error.

Rivers Buford, Atty. Gen., J. B. Gaines, Asst. Atty. Gen., J. R. Kelly, State, atty., of Madison, and Stafford Caldwell, Asst. State Atty., of Jacksonville, for the State.

OPINION

BROWNE, J.

The plaintiff in error, T. W. Higginbotham, indicted by the grand jury of Madison county, Fla., charged with the murder of Martin Tabert in Dixie county, Fla., was convicted of murder in the second degree under the second count.

There are thirty-eight assignments of error. Some present the same questions but in a different form, or arising under objections to matters of procedure during the progress of the cause, and some are abandoned. They can better be discussed by grouping some as to subjects, instead of taking them up seriatim, and this we will do.

The first and second assignments relate to the investigation and finding of the indictment by the grand jury of Madison county.

Section 6102, Revised General Statutes, which was in force at the time the investigation was made by the grand [88 Fla. 28] jury of Madison county, provided:

'Whenever the judge shall deem it impracticable or inexpedient to form a grand jury in any county for want of sufficient number of qualified jurors therein, or on account of any [101 So. 234] undue excitement or prejudice among the people, it shall be lawful for the grand jury of any county within the circuit to indict any person for crime committed in the county first mentioned, but the trial thereof shall be in the county where the crime was committed, unless the judge shall otherwise order upon motion of the defendant and on such motion the defendant may be tried in any county in the state.'

This vests in the circuit judge very great power, but none too great for one holding the responsible position of circuit judge.

The statute does not prescribe any form of procedure by which he shall reach the conclusion that it is 'impracticable or inexpedient to form a grand jury in any county for want of sufficient number of qualified jurors therein, or on account of any undue excitement or prejudice among the people.'

Circuit judges are men of high character. They usually have an intimate knowledge of conditions prevailing in the counties of the circuits over which they preside, and have facilities for making investigation of conditions, and may do so, without affidavits. If the circuit judge had knowledge of conditions in Dixie county, to warrant him making the order in which he declared that it was 'impracticable and inexpedient to form a grand jury to investigate this cause,' he was warranted under the statute to do so.

In Curry v. State, 17 Fla. 683, a similar statute, that differed slightly in phraseology from section 6102 of Revised General Statutes, now under consideration, was passed upon by this court.

[88 Fla. 29] The former statute, which was chapter 1637, Laws of 1868, provided that 'whenever it shall be in the opinion of the judge,' etc., while section 6102 provides, 'whenever the judge shall deem it,' etc. In construing chapter 1637, this court said, if the circuit judge 'was of such opinion, it should have been embodied in an order and made part of the record.'

Following that rule, the circuit judge in the instant case embodied in his order that he was 'of the opinion that it is impracticable and inexpedient to form a grand jury in Dixie county to investigate said cause, where it is alleged said crime was committed, on account of undue prejudice among the people of said county, favorable towards the above-named defendant.'

This procedure is not a change of venue, because the statute provides that, after an indictment has been found in another county, 'the trial thereof shall be in the county where the crime was committed, unless,' etc.

After the indictment was filed in Dixie county, and before the case was called for trial, section 6102 was amended by chapter 9166, Acts of 1923, and instead of requiring the defendant to be tried in the county where the crime was committed 'unless the judge shall otherwise order, upon motion of the defendant,' it provides:

'But upon the return of any such indictment, the same shall be certified and transferred to the county where the crime was committed and trial thereon shall be had in such county unless a motion for change of venue, under the provisions of sections 6099, 6100 and 6101, Revised General Statutes of Florida, relating to change of venue, should be made on behalf of the defense or on behalf of the prosecution and such motion be granted upon order of court.'

[88 Fla. 30] It is contended that this statute is unconstitutional, because in conflict with section 11 of the Bill of Rights.

The various statutes relating to change of venue, cited by the defendant in error, were before this court for consideration and construction in Hewitt v. State, 43 Fla. 194, 30 So. 795, and the second headnote to the opinion is as follows:

'The statutes in force in this state in reference to change of venue in criminal cases without the consent of the accused (sections 2928 and 2929 [Revised General Statutes of 1920], and chapter 4394, Laws of 1895) authorize the court to direct a change of venue when an impartial jury cannot be secured in the county where the offense is alleged to have been committed, and, limiting their meaning to authorize the change without the consent of the accused when it is impossible to secure an impartial jury in the county where the offense was committed, they are constitutional.'

The change of venue statutes were before this court again in O'Berry v. State, 47 Fla. 75, 36 So. 440, and this court said:

'The above-cited section of the Declaration of Rights in the Constitution and all of the above-cited statutes were before this court for consideration and construction in the case of Hewitt v. State, 43 Fla. 194, 30 South. Rep. 795. * * * We are of the opinion that the conclusion reached in said case and the principles enunciated in the opinion rendered therein are correct.'

In so far as chapter 9166, Acts of 1923, authorizes a change of venue from the county where the crime was committed, under the provisions of the general statutes regulating changes of venue, what was said by this court in Hewitt v. State, supra, and O'Berry v. State, supra, is applicable; and, limiting it to the practical impossibility of securing an impartial jury in that county, we think it is constitutional. As was said in the case of Hewitt v. State, [88 Fla. 31] 43 Fla. 194, 30 So. 795:

'Where a trial by an impartial jury can be secured in the county where the crime is committed, the accused cannot be deprived of a trial there, even under sanction of legislative action.'

Limiting chapter 9166, Acts of 1923, to mean that a change of venue without the consent of the accused may be granted on application of state, only when it is impossible to secure an impartial jury in the [101 So. 235] county where the crime was committed, it is constitutional.

It is contended that this amendment was an ex post facto law, and could not be applied in the trial of the defendant.

The definition of an ex post facto law now universally adopted in this country is:

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20 practice notes
  • Weaver v. Graham, No. 79-5780
    • United States
    • United States Supreme Court
    • February 24, 1981
    ...of the offense, not merely whether it increases a criminal sentence. Greene v. State, 238 So.2d 296 (Fla.1970); Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235 (1924); Herberle v. P. R. O. Liquidating Co., 186 So.2d 280, 282 (Fla.App.1966). Thus in Dobbert v. Florida, 432 U.S. 282, ......
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...is not, however, fatal to vindication of the right to be tried in the county in which the crime was committed. See Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924); Rhoden v. State, 179 So.2d 606 (Fla. 1st DCA II. The state indicted Mr. Sailor and three co-defendants for first degree m......
  • Greene v. State, No. 39453
    • United States
    • United States State Supreme Court of Florida
    • July 30, 1970
    ...in the following section.' Fla.Stat. § 775.11 (1969), F.S.A. 18 96 Fla. 768, 782, 119 So. 380, 385 (1928). 19 Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235...
  • Gillooley v. Vaughn
    • United States
    • United States State Supreme Court of Florida
    • November 22, 1926
    ...State, 29 Fla. 500, 10 So. 556; Hanley v. State, 50 Fla. 82, 39 So. 149; Barnes v. State, 68 Fla. 291, 67 So. 131; Higginbotham v. State, 88 Fla. 26, 101 So. 233. A careful study of these cases, however, will disclose that the question here presented was not raised in any of them. In all of......
  • Request a trial to view additional results
20 cases
  • Weaver v. Graham, No. 79-5780
    • United States
    • United States Supreme Court
    • February 24, 1981
    ...of the offense, not merely whether it increases a criminal sentence. Greene v. State, 238 So.2d 296 (Fla.1970); Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235 (1924); Herberle v. P. R. O. Liquidating Co., 186 So.2d 280, 282 (Fla.App.1966). Thus in Dobbert v. Florida, 432 U.S. 282, ......
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...is not, however, fatal to vindication of the right to be tried in the county in which the crime was committed. See Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924); Rhoden v. State, 179 So.2d 606 (Fla. 1st DCA II. The state indicted Mr. Sailor and three co-defendants for first degree m......
  • Greene v. State, No. 39453
    • United States
    • United States State Supreme Court of Florida
    • July 30, 1970
    ...in the following section.' Fla.Stat. § 775.11 (1969), F.S.A. 18 96 Fla. 768, 782, 119 So. 380, 385 (1928). 19 Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235...
  • Gillooley v. Vaughn
    • United States
    • United States State Supreme Court of Florida
    • November 22, 1926
    ...State, 29 Fla. 500, 10 So. 556; Hanley v. State, 50 Fla. 82, 39 So. 149; Barnes v. State, 68 Fla. 291, 67 So. 131; Higginbotham v. State, 88 Fla. 26, 101 So. 233. A careful study of these cases, however, will disclose that the question here presented was not raised in any of them. In all of......
  • Request a trial to view additional results

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