Johnson v. State

• Decision Date: 08 January 1934
• Citation: 113 Fla. 461,152 So. 176
• Parties: JOHNSON v. STATE.
• Court: Florida Supreme Court

152 So. 176

113 Fla. 461

JOHNSON v. STATE.

Florida Supreme Court

January 8, 1934

En Banc.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Thomas J. Johnson, alias Johnny Jones, alias Johnny Johns, alias George Blake, was convicted of murder, and he brings error.

Reversed for a new trial.

COUNSEL

Marvin Green and R. G. Tittsworth, both of Tampa for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Compbell, Asst. Atty. Gen., for the State.

OPINION

DAVIS Chief Justice.

Mitchell A. Franklin, for whose murder the defendant in this case was found guilty and sentenced to death, was proprietor of a lunch stand located on South Nebraska avenue in the city of Tampa, Fla.On April 19, 1932, in an encounter with the defendant, Mr. Franklin was shot and mortally wounded between 9 and 10 o'clock in the morning.Deceased was a man over sixty years old; the defendant thirty-five.Franklin, it may be inferred from the evidence, was, among other things, a petty money lender and usury taker who, in undeniable violation of the federal statutes on the subject ^[1] had made a loan of $4 to Johnson, who, as security for the repayment of the loan with an added dollar for one week's interest, had deposited with Franklin his United States Army war service bonus certificate.

Defendant's version of the homicide was that he had called on Franklin at the latter's place of business in the negro quarter of the city of Tampa, where deceased was conducting a small lunch stand, cold drink dispensary, etc., in the body of a large automobile on a vacant lot near a paved street; that deceased had engaged in the practice of lending small sums of money to sailors and negroes, and had made a loan to defendant about a month previously of the sum of $4 for one week, defendant to repay him $5, or $1 a week interest until paid; that on this occasion defendant and deceased greeted each other with the usual morning salutation, neither evincing unfriendliness; that defendant was unarmed and on a lawful mission; that he inquired of deceased whether he still had defendant's bonus certificate and was informed that he did; that defendant asked deceased to accord him the privilege of seeing it, whereupon deceased asked if defendant wanted to pay the debt for which it was being held as security; defendant replied that he did not have the money to spare right then, whereupon deceased stated that defendant could not see the certificate unless he was going to pay the debt.

The evidence from this point on is in some conflict.But it was of such nature as to warrant the trial jury in finding that defendant, upon request therefor, obtained possession of a pistol and the cartridges for same from Franklin for examination (for what purpose the examination was to be made is not explained); that as soon as defendant got the pistol in his hands that he drew it upon deceased and demanded, under coercion of a threatening gesture made with the weapon in support of his demand, that deceased surrender up to defendant the latter's bonus certificate; that at the same time defendant reached into a pasteboard soap box nearby and took out of it a handful of deceased's money, which was in small change; that the bonus certificate was in this same box (although this fact is not shown to have been at that time known to defendant); that a struggle between defendant and deceased forthwith ensued; that as a result of the efforts of deceased to disarm defendant and as a result of the act of deceased in taking hold of the pistol in the course of the struggle, deceased was shot; that in the same scuffle defendant was also shot; that in all, three shots were fired, the third one being the one that inflicted the mortal wound.Defendant left the scene immediately after the shooting and was apprehended on the same day and placed in jail.Both participants were white men.

At the trial, over objection of the defendant, the court admitted in evidence proof of an alleged dying declaration shown to have been made to a city detective under the following circumstances about two hours before declarant died: 'W. D. Bush, City Detective, testified that he went to the operating table and said to Mr. Franklin: 'You are in a serious condition, aren't you?'And Franklin said, 'Yes.'Bush then asked him about his pain and Franklin said he was in 'lots' of pain.Bush then said, 'Do you know you are shot through and through?'And Franklin said, 'Yes, I do.'Bush then said, 'Do you know you are going to die?' and Franklin said, 'Well, I feel like it, I feel bad.'Then Bush said, 'Go on, Mr. Franklin, and tell me who shot you.”Dr. Lancaster, who attended the deceased in the emergency ward of the Municipal Hospital, testified that he told Franklin that his condition was serious and that he(the doctor) did not know whether the wounded man 'would make the grade or not'; that Franklin himself replied that he knew he was in a serious condition and that if he did not get relief from the pain that he knew he would die anyway because he could not live with the pain he was having.Upon being asked if Franklin expressed any hope of recovery, Dr. Lancaster said: 'No sir, he did not to me.'Two hours after this Franklin was dead.

Whether a sufficient and proper predicate has been laid for the admission in evidence of a dying declaration is a primary matter for determination by the trial court, being a mixed question of law and fact, and the judgment of the trial court thereon is entitled to great weight; every presumption being in favor of its correctness.Such ruling is subject to appellate review, but it will not be disturbed unless it clearly appears to be erroneous.That declarant, at the time of his dying declaration, entertained no hope of recovery, and that he knew and appreciated his condition as being that of an approach to certain and imminent death may be gathered from proof of the surrounding circumstances, as well as from all the circumstances of the case.It is not indispensable that deceased declare totidem verbis that he entertains no hope whatever of recovery, and realizes that death is imminent and unavoidable, where the understood nature of his injury is such as to establish beyond all reasonable doubt that declarant must have known and believed he was talking as a man on the threshold of mortal dissolution.Sealey v. State,89 Fla. 439, 105 So. 137;Richardson v. State,80 Fla. 634, 86 So. 619;Gardner v. State,55 Fla. 25, 45 So. 1028;Bennett v. State,66 Fla. 369, 63 So. 842;Folks v. State,85 Fla. 238, 95 So. 619;Copeland v. State,58 Fla. 26, 50 So. 621;Malone v. State,72 Fla. 28, 72 So. 415.

So there was no error in admitting proof of the dying statement of deceased which was as follows:

'I asked Mr. Franklin, after he told me that he thought he was going to die, who shot him and he said a man by the name of Johnny Johns was all of the name he knew him by.I asked him where he lived, and he said he stayed around the Seamen's Institute.He said that he had loaned this fellow four dollars on a bonus certificate about a month, I believe, before that.This fellow came there and stayed around a few minutes and talked to him

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