Johnson v. State

• Decision Date: 23 May 1956
• Citation: 91 So.2d 185
• Parties: Harold Douglas JOHNSON and Alton H. Johnson, appellants, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 185

91 So.2d 185

Harold Douglas JOHNSON and Alton H. Johnson, appellants, v. The STATE of Florida, Appellee.

Supreme Court of Florida, En Banc.

May 23, 1956.

Rehearing Denied Jan. 3, 1957.

Coe & Coe, Pensacola, for appellants.

Richard W. Ervin, Atty. Gen., and Bart L. Cohen and Jos P. Manners, Asst. Attys. Gen., for appellee.

HOBSON, Justice.

This is appeal from judgments entered by the Court of Record of Escambia County on verdicts finding appellant Harold Johnson guilty of third degree murder and appellant Alton Johnson guilty as accessory before the fact.

The basis facts are as follows: decedent, an 18 year old Alabama high school student, became pregnant, apparently by one William Hamilton, the school athletic coach, who admitted having had sexual intercourse with her on several occasions. Hamilton confided in his friend Alton Johnson, one of the appellants, and solicited Alton's aid in finding an abortionist. Alton consulted with his brother, appellant Harold Johnson, a traveling salesman, who thought he could make appropriate arrangements in Pensacola. Alton drove decedent to Pensacola and turned her over to Harold, who rented a cottage in a tourist court. Harold testified that he attempted to get in touch with an abortionist named Margaret, but was temporarily unsuccessful, that decedent asked him to leave the cottage, as he did for a short while, and that when he returned, decedent was demonstrating strange symptoms and later appeared to faint. Harold then contacted Alton, who had not been present while Harold and decedent were at the tourist court, and the pair took her to the hospital, where she was pronounced dead. An autopsy revealed that she had died from air bubbles in the bloodstream, admitted through perforations or puncture wounds in the placenta, apparently produced by the introduction of a sharp object through the cervix. A piece of wire, apparently part of a coat hanger, was later found at the tourist court in the cottage Harold and decedent had occupied.

The information filed against Harold and Alton was in two counts, the first count charging both with inserting a wire into the womb of decedent with intent to produce a miscarriage, thereby causing her to sicken and die, and the second count charging that Alton was guilty of 'the substantive felony of accessory before the fact to the felony of manslaughter.'

The jury found Harold guilty of third degree murder. Alton was found not guilty on the first count, but 'guilty as charged' under the second. Thereupon the court adjudged Harold guilty of third degree murder and Alton guilty of 'accessory before the fact to third degree murder under the second count.'

Appellant Harold Johnson contends that under the decision of this court in Weightnovel v. State, 46 Fla. 1, 35 So. 856, his conviction of third degree murder cannot stand. The State counters with the argument that this point was not properly raised, but we do not agree. It was vigorously urged by the defense throughout the trial, beginning at the close of the State's case, and it was raised as an exception to the State's requested instructions in a manner specific enough so that it could not have been mistaken by the trial judge. Febre v. State, 158 Fla. 853, 30 So.2d 367, 368, relied upon by the State, is not in point, for in that case the record showed proposed instructions to the jury "were submitted to counsel for both sides, and no exceptions were taken or recorded." That is not the situation here.

To proceed to the merits, the first count of the information herein was similar to the first count considered in the Weightnovel case, supra. In this case as in that, appellants were charged with attempting an abortion with an instrument, with fatal results, and there was neither allegation nor proof that the deceased was pregnant with a quick child. In the Weightnovel case, construing the applicable statutes, we said 'Murder in the third degree is defined by section 2380, Rev.St. [presently F.S. Sec. 782.04] as follows: 'The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the commission of any felony, other than arson, rape, robbery or burglary, it shall be murder in the third degree, and shall be punished,' etc. But the acts charged in the said count of the information can hardly be classed as murder in the third degree, or in any of the other statutory degrees of murder, without convicting the legislature of the gross inconsistency of creating the crime of murder out of the unintentional killing of a woman, not pregnant with a quick child, in an attempt to procure a simple miscarriage of such woman, when by the provisions of section 2387, Rev.St.1892 [presently F.S. Sec. 782.10], it is made manslaughter only to cause the death of a woman pregnant with a quick child where the intent was to abort or destroy such child. We are not justified in so construing the statutes as to bring about so absurdly inconsistent a result.' 46 Fla. 7, 8, 35 So. 858.

The court went on to hold, however, that the first count of the indictment sufficiently alleged the crime of manslaughter under the general manslaughter statute, R.S. Sec. 2384, presently F.S. 782.07, F.S.A.

Under the construction given in the Weightnovel case to the statutes involved, it was plainly error to hold the appellant Harold Johnson guilty of third degree murder. There would be no further problem on this aspect of the case if it were not for certain dictum in Grimes v. State, Fla., 64 So.2d 920, to the effect that because the legislature has not amended the applicable law since the Weightnovel case was decided (in 1903), this amounts to a repudiation of the Weightnovel construction. Appellants challenge this statement in the Grimes case, and we agree that it must be, and it is hereby, receded from. In the civil case of White v Johnson, Fla., 59 So.2d 532, we said, in accord with a fundamental principle of statutory construction, that failure by the legislature to amend a statute which had been construed in 1939 in the case of Wolf v. Commander, 137 Fla. 313, 188 So. 83, amounted to legislative acceptance or approval of the construction rendered in the earlier case. In the present case this principle is applicable a fortiori. In 14 Am.Jur., Courts, Sec. 67, p. 288, it is stated:

'Where a court is asked to extend the scope of a criminal statute beyond that given to it by a former construction, such a request may be denied on the ground that the overturning or extension of an established doctrine of the criminal law would be in the nature of ex post facto judicial legislation.'

Moreover, contemporaneous construction and long acquiescence in a particular construction are entitled to great weight. The City of Panama v. Phelps, 101 U.S. 453, 25 L.Ed. 1061; Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64. The statutes we have cited above made their first appearance, so far as we are informed, as part of Chapter 1637, Laws of Florida 1868. While the Weightnovel construction, in 1903, was not contemporaneous with the adoption of the statutes, it was reached in an atmosphere far more nearly contemporaneous thereto than that existing when the Grimes case was decided, and is entitled to correspondingly more weight, in the absence of a cogent reason for change, and we are aware of no such reason. We therefore reaffirm the Weightnovel construction, and hold that the conviction of appellant Harold Johnson of third degree murder was error. We cannot accept the suggestion of counsel that manslaughter was not charged because there was no allegation that the act was negligently done. In the Weightnovel case we squarely held that the state of facts laid in this information constitutes manslaughter under F.S. Sec. 722.07, F.S.A., the general manslaughter statute. But since Harold Johnson received a verdict of guilty of a higher offense than that with which he was charged, and which was not responsive to the information, the judgment as to him must be reversed and the cause remanded for a new trial. See Ziegler v. State, 95 Fla. 108, 116 So. 241, and Myers v. State, 115 Fla. 627, 155 So. 797.

Appellant Alton Johnson contends that it was error for the court to adjudge him guilty as accessory before the fact to third degree murder when the jury had found him guilty as accessory to manslaughter, and we must, of course, agree. At the early common law, there could be no accessory before the fact to manslaughter but this rule has now been generally departed from. See Thomas v. State, 73 Fla. 115, 74 So. 1; Mathis v. State, 45 Fla. 46, 34 So. 287; State v. McVay, 47 R.I. 292, 132 A. 436, 44 A.L.R. 572; Annotation, Accessory before fact in manslaughter, 44 A.L.R. 576; and Clark and Marshall on Crimes, 5th Ed. Sec. 175. And if the crime of murder had been committed herein, an accessory appropriately indicted could properly be found guilty as accessory to manslaughter, as a lesser included offense, Thomas v. State, supra, 74 So. 1. It is equally clear, however, that one cannot be charged with the lesser offense, found by the jury to be guilty thereof, and subsequently adjudged by the court to be guilty of the greater offense. The judgment as to Alton Johnson is therefore patently in error, and must be reversed.

In fairness to the trial judge, it might be observed that we understand how he could easily have been led into error by the dictum in Grimes v. State, supra, 64 So.2d 920. The errors of law, however, have been committed to the obvious prejudice of these appellants. Under such circumstances, we are of the view that by a new trial the evidence can be presented to another jury liberated from the harmful errors of law which occurred in the first trial. Despite the terrible tragedy reflected by this record, our system of justice will permit of no other conclusion, and a new trial must be awarded both appellants. See Ziegler v. State, supra, 116...