Johnston v. State

CourtUnited States State Supreme Court of Florida
Writing for the CourtBROWN, Justice.
Citation112 Fla. 189,150 So. 278
PartiesJOHNSTON v. STATE.
Decision Date03 October 1933

150 So. 278

112 Fla. 189

JOHNSTON
v.
STATE.

Florida Supreme Court, Division B.

October 3, 1933


Error to Circuit Court, Polk County; H. C. Petteway, Judge.

Joseph E. Johnston pleaded guilty of unlawful homicide and was adjudged guilty of first-degree murder and sentenced to death, and he brings error.

Reversed and remanded.

BUFORD and WHITFIELD, JJ., dissenting.

COUNSEL [112 Fla. 189] J. T. Chancey, of Tampa, for plaintiff in error.

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

OPINION

BROWN, Justice.

At the threshold of this case, we are confronted with the question whether or not the trial court committed reversible error in denying the motion for change of venue, and if so, whether or not under the circumstances [112 Fla. 190] of this case, this error was cured or waived by what subsequently transpired.

It was only after the final denial of the motion for change of venue, which was presented anew on the day of the trial, April 18, 1932, together with additional evidence in support thereof, that the plaintiff in error withdrew his plea of not fuilty and interposed a plea of guilty, which, under the statute, required the trial judge, without a jury, to proceed to take the testimony and determine the degree of the homicide, and pass sentence accordingly, The record indicates that it was because of the denial of his motion for change of venue that the plaintiff in error, believing that he could not obtain a fair and impartial trial before a jury, at the time and place of the trial, decided to change his plea, as above stated, and thus forego his plea, as above right to a jury trial, and leave it to the trial judge to determine, under the statute, the degree of his guilt. Thus the error in denying the motion was not waived.

It was on the afternoon of Easter Sunday, March 27, 1932, in the city of Lakeland, Fla., that two highly esteemed police officers were killed while in the discharge of their duty. This terrible occurrence naturally aroused a high degree of public indignation. This plaintiff in error was charged with the murder of one of these popular officers, and Perry Acree was charged with the murder of the other. On March 28, 1932, the circuit judge summoned the grand jury to convene the following day, and on that day, March 29, plaintiff in error was indicted. The court recessed until April 2, at which time counsel for the defendant, Johnston, presented a motion for a change of venue and also a motion for continuance, both of which were overruled, and the defendant was arraigned and entered a plea of not guilty. The court recessed until April 6th, motion [112 Fla. 191] for continuance to the October term was denied, and then the case was set for trial on the 18th day of April, 1932, when the motion for change of venue, together with additional evidence in support thereof, was again presented by counsel for the defendant, and, upon being denied by the court, the defendant changed his plea as above stated.

The defendant's motion and the affidavits and evidence in support of same, in spite of [150 So. 279] the prosecution's traverse and evidence, show a situation which, under the previous decisions of this court, entitled the defendant to a change of venue, or at least to the granting of the motion for postponement until the popular excitement had subsided.

Certain significant facts stand out, practically undisputed: The mob of two thousand or more which gathered around the city jail immediately after the defendant's incarceration on the afternoon of the homicide, demanding that the defendant be turned over to them; the address to the mob, made by a popular and influential citizen at the request of the mayor, seeking to quell their excitement and to prevail upon them to let the law take its course; the calling out of the State Militia by the Governor at the request of the state attorney, who guarded the defendant with machine guns from the evening of March 27th until the afternoon of March 28th; then the removal of the defendant under heavy guard to the county jail in Bartow, where the guard of state troops was again resumed; the guarding by armed men of the highways leading from Lakeland for the evident purpose of taking the defendant from the duly authorized officers of the law and wreaking mob violence upon him; the wide publicity which was given all this by the newspapers of the county; the great public indignation and hostility which were aroused, not only against the defendant, but even against the brave young and inexperienced attorneys [112 Fla. 192] who...

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8 practice notes
  • Peel v. State, No. 3093
    • United States
    • Court of Appeal of Florida (US)
    • February 1, 1963
    ...had the cause proceeded to trial conclusion. The appellant seeks to bring himself within the purview of Johnston v. State, 1933, 112 Fla. 189, 150 So. 278, in which case the defendant changed his plea from not guilty to guilty after a denial of his motion for a change of venue because he be......
  • Ashby v. State, Nos. 68--647--68--650
    • United States
    • Court of Appeal of Florida (US)
    • November 7, 1969
    ...in light of the motion and or the Order denying the Motion to Suppress.' Our decision on this point is controlled by Johnston v. State, 112 Fla. 189, 150 So. 278 (1933), wherein the Supreme Court of Florida in speaking through Mr. Justice Brown 'At the threshold of this case, we are confron......
  • Utsman v. State, No. 45540
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 11, 1972
    ...denied a motion for change of venue, this error was waived when the defendant entered a plea of guilty. Cf. Johnston v. Florida, 112 Fla. 189, 150 So. 278 We hold that when the appellant entered his plea of guilty, he waived his right to complain of the failure to change venue. The contenti......
  • Mcrane v. State
    • United States
    • United States State Supreme Court of Florida
    • March 15, 1940
    ...of the motion for change of venue was prejudicial error. See Blackwell v. State, 76 Fla. 124, 79 So. 731, 1 A.L.R. 502; Johnston v. State, 112 Fla. 189, 150 So. 278. Question number three presented by plaintiff in error is: 'Where on preliminary examination one witness has testified and giv......
  • Request a trial to view additional results
8 cases
  • Peel v. State, No. 3093
    • United States
    • Court of Appeal of Florida (US)
    • February 1, 1963
    ...had the cause proceeded to trial conclusion. The appellant seeks to bring himself within the purview of Johnston v. State, 1933, 112 Fla. 189, 150 So. 278, in which case the defendant changed his plea from not guilty to guilty after a denial of his motion for a change of venue because he be......
  • Ashby v. State, Nos. 68--647--68--650
    • United States
    • Court of Appeal of Florida (US)
    • November 7, 1969
    ...in light of the motion and or the Order denying the Motion to Suppress.' Our decision on this point is controlled by Johnston v. State, 112 Fla. 189, 150 So. 278 (1933), wherein the Supreme Court of Florida in speaking through Mr. Justice Brown 'At the threshold of this case, we are confron......
  • Utsman v. State, No. 45540
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 11, 1972
    ...denied a motion for change of venue, this error was waived when the defendant entered a plea of guilty. Cf. Johnston v. Florida, 112 Fla. 189, 150 So. 278 We hold that when the appellant entered his plea of guilty, he waived his right to complain of the failure to change venue. The contenti......
  • Mcrane v. State
    • United States
    • United States State Supreme Court of Florida
    • March 15, 1940
    ...of the motion for change of venue was prejudicial error. See Blackwell v. State, 76 Fla. 124, 79 So. 731, 1 A.L.R. 502; Johnston v. State, 112 Fla. 189, 150 So. 278. Question number three presented by plaintiff in error is: 'Where on preliminary examination one witness has testified and giv......
  • Request a trial to view additional results

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