Lane v. State

• Decision Date: 28 September 1944
• Citation: 19 So.2d 366,154 Fla. 853
• Parties: LANE et al. v. STATE.
• Court: Florida Supreme Court

19 So.2d 366

154 Fla. 853

LANE et al. v. STATE.

Florida Supreme Court

September 28, 1944

Rehearing Denied Oct. 6, 1944.

Appeal from Circuit Court, Alachua County; W. May Walker, judge.

Bradford G. Williams, of Lakeland, for appellants.

J. Tom Watson, Atty. Gen., John C. Wynn, Asst. Atty. Gen., and Orion C. Parker, of Tallahassee, for appellee.

BUFORD, Chief Justice.

This cause is before us on motion of the State to dismiss the appeal upon the ground that same was interposed only for delay and the transcript of the record discloses nothing which does or could constitute a legal ground for appeal and review of the judgment of the Circuit Court in this regard.

The record is before us showing that the three defendants were indicted for the crime of rape alleged to have been committed by them on a woman in Gadsden County, Florida; that a special term of the Circuit Court of the said County was called and held for the purpose of disposing of the charge against the accused; that before indictment the Circuit Judge conferred with the defendants to ascertain whether or not they, or either of them, had retained, or were in position to retain, counsel and, being advised by each of them that they had not retained an attorney and did not contemplate doing so, he then advised each of them that the court would appoint an attorney of the bar of the Second Judicial Circuit to represent each of them and that in doing so he would appoint such attorney as each might select. Two of the defendants stated that they would leave the selection up to the Judge. The other announced that he was acquainted with attorney Clyde Gregory of Tallahassee and wanted him. So the Judge appointed Mr Clyde Gregory for that defendant and appointed another able attorney, Mr. R. W. Ashmore, Jr., of the Tallahassee Bar, to represent one of the other defendants and Mr. Paul Gregory, an able lawyer with many years of successful experience in the practice of criminal law in this section of Florida, to represent the other defendant, of which appointments he advised the defendants and they approved his action. He also arranged for these three attorneys to meet and confer in private with defendants whenever such conferences were desired by either or all.

Thereafter, a special term of court was called, a grand jury was empaneled and the indictment was returned and a day set for such trial all in the presence of such attorneys. The accused and the parent or parents of the minor defendants were given due notice thereof. When the day and time arrived for trial it was made to appear to the trial court that the accused could not procure a fair and impartial trial in Gadsden County and that there existed a great probability that if it was attempted to bring accused into court at that time and place there would be bloodshed. Thereupon the State presented its motion that the cause be removed for trial to some convenient Circuit Court where the defendants could have a fair and impartial trial. Attorneys for each of the defendants announced in open court that they, as attorneys for respective defendants, approved the motion and consented that it be granted. Thereupon an order was duly made and entered removing and transferring the cause for trial and other proceedings to the Circuit Court of Alachua County, Florida, at Gainesville.

Thereafter, Executive Orders were made by the Governor assigning Hon. W. May Walker, Circuit Judge of the Second Judicial Circuit of Florida, and Hon. Orion C. Parker, State's Attorney of the Second Judicial Circuit of Florida, to proceed to Gainesville in the Eighth Judicial Circuit of Florida, and to there act and function as Circuit Judge and State's Attorney respectively in said County and said Court in all further proceedings in connection with the trial and disposition of said cause.

Pursuant to such order, a special term of the Circuit Court in and for Alachua County was duly called and held, attorneys for the defendants being present in court. A day and date agreeable to said counsel was thereupon set for trial and, after due notice to the defendants and their respective attorneys, and to the parent or parents of the minor defendants, of said trial date, the cause came on for trial. When the cause was called for trial the defendants, each in person and by attorney, were present and announced ready for arraignment under the indictment charging each of the defendants with the crime of rape.

Thereupon, each of the defendants was separately arraigned and each entered his plea of guilty to the offense charged. Thereupon the trial court carefully questioned each defendant to ascertain whether or not his plea was freely and voluntarily entered and whether or not the defendants each respectively realized what the consequence of such plea would probably be. The answers of each of the defendants were sufficient to show that he entered his plea freely and voluntarily and that he was fully advised of his rights and realized the results which would probably follow such plea.

Thereupon the trial court accepted the plea of each of the defendants, discharged the jury and proceeded to take testimony concerning the circumstances surrounding the crime for the purpose of determining the penalty to be lawfully inflicted as to each. See § 921.13, Florida Statutes, 1941, F.S.A. The victim of the assault and other witnesses on behalf of the State were examined under oath in the presence of each defendant and his attorney, with full opportunity given for cross-examination, and testified as to pertinent facts without objection by or from either of the defendants. We find no illegal evidence to have been received however. Then each defendant voluntarily (as shown by the record) became a witness in his own behalf and, after being carefully warned of his rights, testified fully and frankly, under oath, as to the commission of the crime to which he had entered his plea. Each testified that he and his two co-defendants held up the woman victim in Gadsden County, Florida, on a highway in the night-time, at which time defendants were armed with a pistol and a rifle, both of which they pointed at the woman and with them (the weapons) threatened her life; that by force and against her will and with threats of death if she did not submit, each of the defendants assaulted her, consummating sexual intercourse with her (two of them twice, once each in an automobile and once each on the ground a short distance away from the road; one of the defendants admitted only one act of sexual intercourse. However, his co-defendants and the woman all testified that he also committed the act twice.)

Each defendant testified, in effect, that after they had each sexually assaulted the woman the first time they discussed among themselves the advisability of killing the woman whom they were then by threats and force detaining, to prevent her from reporting and prosecuting them; that after they had each sexually assaulted her the last time one of them shot her (she was shot twice) and that they then believed she was dead; that they covered her with leaves, trash and limbs and fled the scene in an automobile.

The testimony shows that the woman, after a few hours, recovered consciousness, made her way to other people and reported the occurrence. Within a few hours the perpetrators of the crime were apprehended and arrested more than a hundred miles from the scene of the crime.

On the plea and evidence each defendant was adjudged guilty of the crime of rape and was sentenced to death by electrocution.

From the judgment and sentence, notice of appeal was filed. Thereupon, the appellee filed the aforesaid motion to dismiss and brought a complete certified transcript of the record of the proceedings, trial and judgment to be filed here, which was duly filed. After due notice to counsel of record on said appeal, the said motion...