Howell v. State

• Decision Date: 30 January 1919
• Citation: 81 So. 287,77 Fla. 119
• Parties: HOWELL v. STATE.
• Court: Florida Supreme Court

81 So. 287

77 Fla. 119

HOWELL v. STATE.

Florida Supreme Court

January 30, 1919

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Grace V. Howell was convicted of murder in the first decree, and she brings error. Reversed.

West J., dissenting.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

Where an indictment charges that the defendant made the assault 'from a premeditated design to effect the death of one Thomas Howell,' that she shot off and discharged the pistol 'from a premeditated design,' and that she inflicted the wound from which the victim died 'from a premeditated design,' a motion to quash on the ground that the indictment fails to charge any premeditated intent or that the wounds were inflicted with a premeditated intent was properly denied.

In an indictment for unlawful homicide, it is not necessary to describe upon what part of the body the wounds were inflicted.

In an indictment for such an offense, it is sufficient to allege that the mortal wound was inflicted on the body of the deceased.

Where an application for a change of venue is based on the prejudice of the presiding judge against the defendant, no discretion is vested in the judge to hear and determine the question of whether or not he is prejudiced, and the change of venue must be granted.

COUNSEL G. A. Worley & Son, of Miami, for plaintiff in error.

Van C Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

BROWNE C.J.

Grace V. Howell was on the 14th of May, 1918, indicted in Dade county for the murder of her husband on March 29th. Motions to quash the indictment, for change of venue, and for continuance were overruled. The defendant was convicted of murder in the first degree, with recommendation to mercy, and seeks reversal here on writ of error.

The first error assigned is based on the ruling of the court denying the defendant's motion to quash the indictment. This motion contained seven grounds, but the only ones discussed by the plaintiff in error are that 'the indictment fails to charge any premeditated intent, or that the wounds were inflicted with a premeditated intent,' and that the 'indictment fails to state on what part of the body the wounds were inflicted.'

We assume that the defendant used the word 'intent' for 'design,' as that is the language of the statute.

The indictment charges that the defendant made the assault 'from a premeditated design to effect the death of one Thomas Howell,' that she shot off and discharged the pistol 'from a premeditated design,' and that she inflicted the wound from which the victim died 'from a premeditated design.' As there is nothing in this contention, the motion to quash upon that ground was properly denied.

The plaintiff in error cites the case of Keech v. State, 15 Fla. 591, in support of the third ground of the motion to quash, that 'the indictment fails to state upon what part of the body the wounds were inflicted.' This court has since modified the rule laid down in that case and it is now sufficient to allege that the mortal wound was inflicted on the body of the deceased. See Walker v. State, 34 Fla. 167, 16 So. 80, 43 Am. St. Rep. 186; Roberson v. State, 42 Fla. 223, 28 So. 424.

Although the other grounds of the motion to quash are not discussed by the plaintiff in error, we find that the indictment contains all the necessary allegations to charge the offense of murder in the first degree, and the motion to quash was properly denied.

The second assignment of error relates to the refusal of the court to grant the defendant's motion for a change of venue, one of the grounds of which was the prejudice of the presiding judge aganst the defendant. The sections of the law governing changes of venue are as follows:

'Judges of all courts in this state shall have power and it shall be their duty to grant changes of venue of all cases pending before them, civil or criminal, under the circumstances and in the manner hereinafter provided by this article.' Section 1469, General Statutes 1906.

'Such change shall be granted if either party in any civil case, or the defendant in any criminal case, shall make application therefor on oath stating that he fears that he will not receive a fair trial in the court where the suit is pending, on account of the prejudice of the judge of said court against the applicant or in favor of the adverse party, or on account of the adverse party having an undue influence over the minds of the inhabitants of the county or justice's district in which the case is pending, or on account of applicant being so odious; such application shall fully and distinctly set forth the facts upon which the same is founded.' Section 1471, Gen. Stats. 1906.

'In all applications for change of venue, except when made upon the grounds of prejudice of the pending judge, the adverse party shall have the right to traverse the allegations of the application, and the court shall hear the evidence produced by either party and shall decide the matter accordingly.' Section 1474, Gen. Stats. 1906.

'Whenever it shall be made to appear to the satisfaction of the presiding judge of any of the circuit courts of this state that the venue of any cause, then pending in such court, should be changed either because a fair and impartial trial cannot be had in the county where the crime was committed, or because it is impracticable to get a qualified jury to try the case in the county where the crime was committed, or where it appears from the examination of the books of registration of the county, that there are not a sufficient number of registered voters to form a grand and petit jury, it shall be in the power and discretion of such judge to change the venue of such case, from the circuit court of the county where such cause is at the time pending to the circuit court of any other county within the same circuit.' Section 3997, Gen. Stats. 1906.

Construing these sections together it is apparent that the provision in section 1471, that 'such application shall fully and distinctly set forth the facts upon which the same is founded,' relates to an application for a change of venue based upon the other grounds, and not when made on account of the prejudice of the judge, because where the application is made on the first grounds, section 1474 provides for an issue being presented to the judge for determination by traversing the allegations of the application, but when made on the ground of the prejudice of the judge no traverse is permitted.

The prejudice in the community, the odium of the applicant, the impracticability of getting a qualified jury, or the registration books showing that there are not a sufficient number of qualified voters in the county, are the facts to be established by proof to the satisfaction of the judge upon issue made by the allegations in support of the motion and the traverse by the adverse party; they relate to extraneous matters and specific conditions, the existence of which the presiding judge is called upon and is competent to determine upon the proof submitted.

An entirely different condition arises when the application is based on the mental attitude of the judge. As there can be no traverse of the allegation of his prejudice, there can be no issue presented, and nothing for the judge to decide. Why should the facts in such an application be set forth, if they cannot be traversed?

The purpose of requiring the facts to be stated, where the grounds are other than the prejudice of the judge, is that he may inquire into and judicially determine their existence or nonexistence. But, where his state of mind is challenged, does he need to have the fact stated to convince him as to his own state of mind? Upon the facts being stated, how would he reach a conclusion? Would he mentally resolve that the allegations are not true, and thus traverse the allegation, contrary to the provisions of the statute? Or may he say, 'I may be prejudiced, but the facts you allege do not establish it?' Or on the other hand, may he say, 'The facts you set forth seem to indicate that I am prejudiced, but, as I know that I am not, I shall refuse the motion?' Such a process could hardly be raised to the dignity of a judicial proceeding. It seems quite clear that the provision in the statute that 'such application shall fully and distinctly set forth the facts upon which the same is founded' does not relate to an application made because of the prejudice of the judge, as no useful purpose would be served by reciting facts which, if they exist, the judge must know of them, and, if they do not exist, no one is permitted to contradict or deny their existence.

The distinction between the allegations that may be traversed and those where no traverse is permitted is very signficant, and clearly indicates an intention on the part of the Legislature to discriminate in the procedure in the two classes of applications.

In a jurisdiction where, unlike ours, the statute requires the application for change of venue on the grounds of the prejudice of the judge to be supported by affidavits of two 'respectable' persons, it was held that the trial judge cannot inquire into and determine whether the affiants are of this class, and that 'respectable' will be construed to be synonymous with competent, and the judge has no discretion, but must grant the change of venue. State v. Spivey, 191 Mo. 87, 90 S.W. 81; State v. Witherspoon, 231 Mo. 706, 133 S.W. 323.

In the last case the court said:

'The law does not contemplate an issue of fact upon an application for a change of venue on account of the disqualification of the judge, to be heard and determined by the judge alleged to be disqualified,...