Leaptrot v. State

• Decision Date: 01 March 1906
• Citation: 51 Fla. 57,40 So. 616
• Court: Florida Supreme Court
• Parties: LEAPTROT v. STATE.

40 So. 616

51 Fla. 57

LEAPTROT v. STATE.

Florida Supreme Court, Division B.

March 1, 1906

Error to Criminal Court of Record, Duval County; S. T. Shaylor Judge.

James B. Leaptrot was convicted of perjury, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

It is not a sufficient ground of exception to the ruling of a trial court, sustaining a challenge of the state to a juror, that a defendant was thereby, after having exhausted his challenges compelled to accept another juror, to whom he objected because of this ruling of the court, when it does not appear that the juror that was forced upon him was not in every way competent, qualified, and unbiased, and when no injury is shown.

The discretion of a trial judge in rejecting a juror will not be disturbed, unless it is shown that there was an abuse of such discretion prejudicial to the defendant.

On the trial of a party for perjury alleged to have been committed by him in the circuit court, in answer to questions put to him to the judge as a juror, on his voir dire examination the questions asked him and the answers given by him, may properly be proven by the state attorney, clerk of the circuit court or by any other competent witness who heard the same.

In the trial of a charge of perjury, the mental condition of the defendant at the time the alleged false oath was taken, and his physical condition as bearing on the mental, including his powers of memory, are proper subjects of investigation; as perjury is committed only where there is intent to testify falsely. This investigation may involve the question of sanity, but not necessarily so, and any competent witness who knows the defendant, may give his opinion as to his failing condition of mind and memory at the time of his committing the alleged perjury.

A defendant in a criminal case is not entitled as of right to an instruction to the jury to render a verdict of not guilty.

In a prosecution for perjury, where the evidence justifies it, a defendant is entitled to an instruction, if he properly prepares and requests it, requiring the jury to take into consideration his mental condition at the time of committing the alleged perjury, whether normal or failing, and his memory whether good or bad, as bearing upon the question of the willful, corrupt perjury charged against him, and the reasonable doubt of his guilt.

The evidence examined, and found not to sustain the verdict.

COUNSEL Walter M. Davis, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

On the 27th of June, 1905, an information was filed in the criminal court of record of Duval county against the plaintiff in error, hereafter called the defendant, wherein it was charged in substance that on the 6th of June, 1905, in the trial of one Jake Bradford in the circuit court of said county, on an indictment for murder in the first degree, in selecting the jury for the trial of this case, that the defendant, among others, was called as a juryman, and was sworn by the clerk of the circuit court, having sufficient authority, to give true answers to such questions as might be asked him touching his competency as a juror; and that the defendant was asked by the circuit judge whether he had formed or expressed any opinion as to the guilt or innocence of Jake Bradford, and whether he was then and there sensible of any bias or prejudice resting in his mind either for or against Bradford, which were material questions; and that the defendant did then and there knowingly, falsety, corruptly, willfully, and wickedly say, depose, and swear to and before the said circuit judge that he (the defendant) had not formed or expressed any opinion as to the guilt or innocence of said Bradford of said charge of murder in the first degree, 'and then and there that he (the said James B. Leaptrot) was not sensible of any bias or prejudice resting on the mind of him (the said James B. Leaptrot), either for or against the said Jake Bradford,' * * * whereas in truth and in fact the said James B. Leaptrot * * * had, previous to the time of his being called and sworn, * * * as aforesaid, and in the presence of one F. D. Miller and T. H. Smith, and divers other persons, whose names are * * * unknown, expressed an opinion as to the guilt or innocence of said Jake Bradford of the said charge of murder in the first degree, by then and there stating to and in the presence of the said F. D. Miller and the said T. H. Smith * * * that he (the said James B. Leaptrot) would hang the said Jake Bradford if he, said James B. Leaptrot, should get on the jury selected to try the said Jake Bradford, and whereas, in truth and in fact, the said James B. Leaptrot was then and there sensible of bias and prejudice resting on his mind against the said Jake Bradford; all which statements made by the said James B. Leaptrot, the said James B. Leaptrot then and there well knew to be false,' and concluding that the defendant 'did in the manner and form aforesaid commit willful and corrupt perjury, contrary,' etc.

We have given so much of the information as has a bearing on the questions we shall discuss.

The defendant pleaded not guilty, and was tried and convicted on the 7th of July, 1905. He was sentenced to the state prison for three years, and from this judgment and sentence a writ of error was sued out from this court. Motions in arrest of judgment and for a new trial were made and overruled, and exceptions taken to these rulings. Such other facts as are necessary to be noticed will be stated in the opinion.

OPINION

HOCKER J. (after stating the facts).

It is assigned as error that the trial judge erred in sustaining a challenge for cause made by the state to a juror. The juror was examined on his voir dire, and asked the following questions: 'Q. Mr. Padgett, this is a case wherein the defendant is charged with perjury. If the evidence in this case should convince you beyond a reasonable doubt of the guilt of the accused, as charged, would you find him guilty as you would in a larceny or any other criminal case or not? Ans. No, sir, I would not. Q. If this evidence convinces you beyond a reasonable doubt of the guilt of the accused, would you convict him? Ans. I would not.' The same questions were asked another juror and the same answers given, and the challenge of the state to this juror was also sustained.

It is contended that inasmuch as the law requires two witnesses, or one witness and corroborating circumstances to convict of perjury, that the questions and answers did not afford legal ground for sustaining the challenge to this juror, and that the defendant was injured by the ruling, inasmuch as after exhausting his challenges, a juror was forced upon him, to whom he objected. The objection to this juror was based entirely upon the ruling of the court in rejecting the two jurors above referred to, and not upon any other ground. There is nothing to suggest that he was not in every way competent, qualified, and unbiased. It is not a sufficient ground of exception that against his objection a juror was rejected by the court upon even insufficient grounds, unless, through rejecting a qualified person the necessity of accepting an objectionable juror has been created. It is enough that it appear that the case has been tried by an impartial jury. 1 Thompson on Trials, § 120. The discretion of a trial judge in rejecting a juror will not be disturbed unless it is shown that there was an abuse of such discretion prejudicial to the defendant. Peaden v. State (Fla.) 35 So. 204, and cases therein cited; Colson v. State, and Melbourne v. State, both of which cases were decided at the present term.

P. D. Cassidey, clerk of the circuit court of Duval county, and A. G. Hartridge, state attorney of the Fourth circuit testified on behalf of the state that the defendant, Leaptrot, was sworn on his voir dire as a juror on the trial of the case of the state against Jake Bradford charged with murder, and that he was examined as to his qualifications as a juror by the circuit judge; that he was asked by the judge whether or not he had formed or expressed any opinion as to the guilt or innocence of Bradford, or whether he was sensible of any bias or prejudice, either for or against the said defendant, and that he answered that he had not formed or expressed any opinion as to Bradford's guilt or innocence, and was not sensible of any bias or prejudice. This evidence was objected to as not the best evidence, as secondary and hearsay. These objections are not tenable. We are of opinion that these questions and answers were very properly proven by the clerk and state attorney, who were present and heard them, or that they might have been proven by any competent witness who heard them. They were not matters of record. 2 Archbold's Cr. Pr. & Pleading, 1744.

The defendant offered to prove by Rev. J. T. Boone, the following: 'I am pastor of the First Christian Church here. I know the defendant, and have known him for a long time. He has been a member of my church, and, as pastor, I have had frequent occasions to see and observe him, and familiarize myself with his manners and habits. I have known him for several years, and have had frequent occasions to notice any peculiarities of mind which he might possess. I knew him just prior to the time he was a juror in the Bradford Case, and for some years before, and had noticed the apparent change in his mental condition from what it was formerly. He did and said a great many...