Kimmons v. State

• Decision Date: 14 September 1965
• Docket Number: F-138,Nos. F-137,s. F-137
• Parties: Winifred Huey KIMMONS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 608

178 So.2d 608

Winifred Huey KIMMONS, Appellant, v. STATE of Florida, Appellee.

Nos. F-137, F-138.

District Court of Appeal of Florida, First District.

Sept. 14, 1965.

Rehearing Denied Oct. 13, 1965.

Robert R. Hendry, of Harrell, Caro, Middlebrooks & Wiltshire, Pensacola, for appellant.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

CARROLL, DONALD K., Judge.

This is an appeal from two judgments entered by the Circuit Court for Escambia County, based upon a jury verdict, convicting the appellant of manslaughter in the slaying of his wife and her paramour.

The three points raised by the appellant for our determination in this appeal are whether the trial court committed reversible, prejudicial error: (a) in admitting into evidence an alleged confession taken while the appellant was under the influence of drugs; (b) in ordering the bailiff to deliver to the jury a written copy of the charges during a court recess and after the jury had retired to deliberate; or (c) in allowing the State to reopen its case after the defense had rested, and call a new witness for further affirmative testimony.

Briefly stated, the evidence at the trial established the following facts: The 28-year-old appellant and his wife, the parents of three young children, had been married ten years as of the date in question, September 10, 1963, and lived near the City of Pensacola. At about 10 o'clock in the morning of the said date he left his house and started to drive to work at a filling station which he owned and operated in Pensacola. Recalling that he needed to make a telephone call, he returned to his house, picked up an extension phone, and overheard his wife and a man discussing plans to meet around noon that day in a wooded section near Pensacola. The appellant then hung up the telephone receiver, left the house, and drove to his filling station, where he remained for most of the morning. Around noon he decided to return home and discuss the overheard telephone conversation with his wife, but, as he neared his house, he observed his wife driving off. He followed her car to the mentioned wooded section, and there saw her car, which was parked adjacent to the car of one Peters. As the appellant approached the two cars on foot, he held a loaded .38 calibre pistol in his hand and had a box of shells in his shirt pocket. From some bushes he observed his wife and Peters in a compromising position in her car, whereupon the appellant approached her car, the occupants of which got out and stood up, and he shot his wife four times and then shot Peters a total of seven times, causing the deaths of both.

After these shootings the appellant drove to his mother's house, where he was observed by his mother, his sister, and two attorneys to be in a state of shock, to be talking incoherently, and to be obviously in need of medical attention. This was around 1:30 P.M., about 30 minutes after the fatal shootings.

The appellant soon thereafter was taken to a hospital, where he received two shots of tranquilizers during the hour from 2 to 3 P.M. He was then taken to the county sheriff's office, where, at approximately 4:30 P.M., in the presence of officers and his attorney, he made a confession into a recording machine.

Two weeks later the appellant was charged by separate indictments with the crime of murder in the first degree for the deaths of his wife and Peters. At his arraignment the appellant pleaded to each indictment not guilty and not guilty by reason of insanity. The two cases were consolidated for trial, which was held on January 6 to 10, 1964. The jury found the appellant guilty of manslaughter under each indictment, and the court sentenced him to confinement at hard labor for 12 years under each conviction, the said terms to run consecutively. Later the court denied the appellant's motion for a new trial, and this appeal followed.

With regard to the appellant's first point in this appeal--concerning the trial court's admission of the said confession into evidence--the appellee contends that there was no evidence at the trial that the appellant was under the influence of the tranquilizers or other drugs at the time he made his confession. Besides, the appellee points out, the confession amounts to nothing more than the appellant's acknowledgement that he shot his wife and her lover at a particular place and in particular circumstances, and he said all of this and more at the trial when he testified in his own behalf upon the advice of his counsel. Our examination of the record of the trial proceedings convinces us that the appellee's position is sound as to this point and that the appellant has failed to demonstrate prejudice resulting to him in the court's admission into evidence of the said confession.

The second point raised by the appellant in this appeal--concerning the delivery of the written charge to the jury after the jurors had retired--is more troublesome to resolve.

At the trial, after both sides had presented their evidence and argued to the jury, the trial court orally gave its charge to the jury, after which the jury retired to consider its verdicts. Later the jury returned to the courtroom and requested the trial judge to give them a written copy of the charges which he had orally given them. The judge ordered the bailiff to give them such a written copy, which the latter did. All this took place while the court was in recess and while neither the appellant nor his counsel was present in the courtroom.

In support of its contention concerning this second point, the appellant relies chiefly upon the decision of the Supreme Court of Florida in the early case of Holton v. State, 2 Fla. 476 (1849). In that case the Supreme Court held that a copy of the charge to the jury, admitting it to be a full and true copy, cannot rightfully be sent to the jury in a criminal case after their retirement, for the charge of the court is part and parcel of the trial of the case, the whole of which the Constitution requires to be public. In that case the written copy was given to the jury without the consent of the defendant or his counsel. The court further declared that, if a charge in such a case and under such circumstances 'may be sent by the judge to the jury, it should be the original one, and not a copy .'

Another Florida case cited and relied upon by the appellant in support of his position on the second point is the more recent case of Holzapfel v. State, 120 So.2d 195 (1960), in which the District Court of Appeal, Third District of Florida, held that, if the jurors in the trial of a criminal case communicate with the officer in charge of the jury and receive from him certain instructions concerning the law of the case before them, outside of the presence of the defendant and of the presiding judge, such misconduct would constitute substantial error, and the fact that the instructions given by such officer were a correct statement of the law would not excuse it, citing as authority for this holding the provisions in Sections 918.07, 919.05, and 920.05(1)(a), Florida Statutes, F.S.A. In the Holzapfel case, in which the appellant was tried for and convicted of breaking and entering with intent to commit grand larceny, the bailiff, at the jury's request, orally explained to them the difference between grand larceny and other larceny. We agree fully with this holding of our sister court, for no rule is more fundamental in the trial of cases than that the instructions to the jury on the law of the case must come exclusively from the judicial officer presiding at the trial. Any other rule would, we think, lead to endless confusion, error, and injustice. That holding, however, is not applicable to the case at bar, for in this case the presiding judge directed and approved the delivery to the jury of the written copy of the charges that he had given.

The holding of our Supreme Court in Holton v. State, supra, cannot, however, be so readily distinguished, for the language used in expressing its above holding appears to outlaw the giving of a written copy of the charges to a jury after their retirement, at least in the absence of the defendant and his attorney.

When confronted with an apparently-applicable rule laid down more than a century ago by the highest court of the state, an appellate court, we think, has the right and duty, in fulfilling its judicial function, to examine closely that rule in an effort to determine whether the reason for the rule still exists today, and also to study the subsequent decisions of the appeallate courts of the state to see whether that rule has been recognized and applied in appropriate cases.

The reason stated by the Supreme Court in the Holton case, supra, for the rule in question is that the court's charges are part and parcel of the trial of the case, the whole of which the Constitution requires to be public. Such a reason, if carried further, would logically prohibit a jury's taking into the jury room exhibits and documentary evidence--a practice universally upheld--and would even require that jurors conduct their deliberations in public.

We are inclined to surmise that an unspoken reason for the rule laid down in the Holton case, supra, is the fact that in 1849, when that decision was rendered, a written copy of instructions usually meant a copy written by pen or pencil in the sometimes illegible or confusing handwriting of the presiding judge or of a court attache. We judicially know that the typewriter was not invented until many years after the said decision was rendered, which machine, now so universally used in court proceedings, has contributed greatly to the accuracy and readability of reports of proceedings, together with vast improvements in shorthand reporting.

Another unexpressed reason for the holding in the Holton case may have been the illiteracy of many persons called to jury duty at the time (1849) when that...