Landrum v. State

• Decision Date: 01 March 1920
• Citation: 79 Fla. 189,84 So. 535
• Parties: LANDRUM et al. v. STATE.
• Court: Florida Supreme Court

84 So. 535

79 Fla. 189

LANDRUM et al. v. STATE.

Florida Supreme Court

March 1, 1920

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

Frank Landrum, Joe Landrum, and Joe Lichenstine were convicted of murder in the first degree with a recommendation to mercy and they bring error. Affirmed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Section 1576, Gen. St. 1906, does not designate the particular places at which the notices of the time and place of the drawing of jurors shall be posted, but only requires the posting of such notices shall be in three public places in the county.

Pleas in abatement setting up mere irregularities in the selection of jurors should be drawn with the greatest precision and must be certain to every intent. They must leave nothing to be supposed by intendment and no supposable special answer unobviated.

A plea stating that the notices were posted in certain places all in Lake City, without alleging that said places were not public places, is defective, and the court committed no error in sustaining a demurrer to such plea.

Motion for change of venue on account of the hostility of the inhabitants of the county to the defendant is addressed to the sound judicial discretion of the trial judge, and this court will not reverse his decision upon such motion unless there is made to appear an abuse of such discretion.

Where the judge, who passed upon the motion, was present, saw the people assemble, heard the evidence upon the motion, and no evidence of great hostility appearing upon the examination of the jurors as to their qualifications and the jurors recommending mercy, when in their power to withhold such recommendation, this court cannot say there was an abuse of the discretion vested in the trial judge.

The only object in granting a continuance in a criminal case on account of the absence of witnesses is to give the defendant time to secure the attendance of such witnesses, or take their deposition, and, when sufficient time is allowed for this purpose, it may be until the next term, or at any special term, or any day during the same term.

Defendants in criminal cases applying for continuance on the ground of the absence of witnesses must in all cases show diligence in attempting to procure the attendance of such witnesses; but where a second or subsequent application for continuance is made on the ground of the absence of the same witnesses extraordinary diligence must be shown to have been exercised in attempting to procure the evidence.

A map, diagram, or picture, whether made by the hand of man or by photograph, identified as a correct representation of physical objects, about which testimony is offered, is admissible in evidence for the use of witnesses in explaining their evidence and to enable the jury to better understand the testimony.

Under the statute, chapter 6228, Acts 1911 (Comp. Laws 1914, s 3979a), giving the defendant the right to the concluding argument when he introduces no testimony except his own, the defendant has the right to the last argument; but when there are two or more counsel the court may direct the order of argument, provided he gives the defendant the final argument by one of his counsel.

It would be well if prosecuting officers would confine their argument strictly to the evidence and logical interences drawn therefrom and refrain from the use of language that only tends to excite the prejudice of the jury against the defendant.

If prosecuting counsel in criminal cases make material statements outside of the evidence which are likely to do the accused injury, it should be deemed an abuse of discretion and cause for reversal; but, when the statement is a general one and of a character not likely to prejudice the cause of the accused in the minds of honest men of fair intelligence, the failure of the court to check counsel should not be deemed such an abuse of discretion as to require a reversal.

COUNSEL Cone & Chapman, of Lake City, for plaintiffs in error.

Van C. Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.

OPINION

WILLS Circuit Judge.

Frank and Joe Landrum, Joe Lichenstine, and Tim Hales were jointly indicted for murder. A severance was granted as to Tim Hales and the other three defendants placed on trial, and verdict of guilty of murder in the first degree with a recommendation to mercy reached.

On April 28, 1919, the grand jury presented the indictment charging these defendants, together with Tim Hales, with the murder of Annie Koon, and on May 1st the defendants filed their pleas in abatement, the substance of said pleas being that the notice required by the statute for the drawing of the jurors was not published at three different places, but were posted in three places within the corporate limits of the city of Lake City. To these pleas the state demurred, and the court sustained the demurrer, and this constitutes the first assignment of error.

There had been no jury drawn by the circuit judge at the former term, and the jury for the term of court at which the indictment was presented was drawn under section 1576, General Statutes 1906, as follows:

'Whenever from any cause no jurors shall have been drawn as provided in the foregoing section, then it shall be the duty of the clerk, at least fifteen days before the sitting of any regular or special term of the circuit court at which a jury shall be required in the presence of the county judge, or in his absence, in the presence of a justice of the peace, and the sheriff or a deputy sheriff of the county, to proceed to draw from the box the names of thirty-six (36) persons to serve as jurors at the next term of the court, and to issue a venire commanding the sheriff to summons the persons so drawn as provided in the preceding sections. The drawing of such jurors shall be publicly made in the courthouse, and the time and place thereof shall be advertised ten (10) days previously by written notices posted at three (3) public places in the county, and the sheriff shall proclaim the meeting and its purpose at the door of the courthouse, just prior to the drawing: Provided, that the drawing in such cases for special terms of the circuit court, or in counties where there are county criminal courts, shall be for twelve jurors only, to serve as petit jurors, unless the judge shall order the drawing of a sufficient number to compose a grand jury for the term.'

The court will take judicial cognizance that Lake City is in Columbia county.

The statute does not specify at what places such notices must be posted, such as at courthouse door or any other place, but that such notices shall be advertised at three public places in the county; there is no allegation in the pleas that the places where such notices were posted were not public places, and, in the absence of definite places at which such notices were to be placed, it was left to the discretion of the officers to select the three public places, and it was necessary in the pleas in abatement to allege the three places were not public places.

'Pleas in abatement setting up mere irregularities in the selection of jurors should be drawn with the greatest accuracy and precision, and must be certain to every intent. They must leave nothing to be supplied by intendment, and no supposable special answer unobviated.' Colson v. State, 51 Fla. 19, 40 So. 183, citing Davis v. State, 47 Fla. 26, 36 So. 170; Kelly v. State, 44 Fla. 441, 33 So. 235; Taylor v. State, 49 Fla. 69, 38 So. 380.

There was no error in sustaining the demurrer.

On May 1st the defendants were arraigned, and each pleaded not guilty, and on motion of the state a severance was granted as to Tim Hales.

On the same day Frank Landrum, Joe Landrum, and Joe Lichenstine filed their motion for change of venue on the ground that the feeling against them in Columbia county was such that they could not receive a fair trial in such county. This motion was supported by their affidavit and the affidavits of 10 citizens of Columbia county with clippings from newspapers in Lake City and Jacksonville; the state produced the affidavits of 20 citizens of Columbia county who swore they were acquainted with the sentiment of the people of Columbia county, and that a fair and impartial jury could be obtained there. The trial judge overruled the motion for change of venue, and this is made the basis of the second assignment of error.

'An accused is entitled to be tried by an impartial jury, and when it is made to appear to the trial judge that a fair and impartial trial cannot be had in the county where the offense was committed, he should direct that the accused be tried in another county. This is a matter left largely to the discretion of the trial court, and its ruling on such matters will not be disturbed unless it appear from the facts presented that the court acted unfairly and committed a palpable abuse of sound discretion.' Singleton v. State, 38 Fla. 297, 21 So. 21, 34 L. R. A. 251, 56 Am. St. Rep. 177.

The judge who passed upon the motion was present, saw the people assemble when the defendants were brought to the courtroom had the whole scene before him, and impressed as he was with the responsibility resting upon him in seeing that these three defendants were tried by a fair and impartial jury, and nothing appearing in the record of any hostility of any of the jurors summoned upon their examination as to their qualification as jurors, and the verdict rendered finding the defendants guilty of murder in the first degree with a recommendation to mercy, when without such recommendation a sentence of capital punishment would have been adjudged, under the statute, is very high evidence to the...