Leavine v. State

• Decision Date: 18 April 1933
• Citation: 109 Fla. 447,147 So. 897
• Parties: LEAVINE v. STATE.
• Court: Florida Supreme Court

147 So. 897

109 Fla. 447

LEAVINE v. STATE.

Florida Supreme Court

April 18, 1933

Rehearing Denied May 17, 1933.

En Banc.

Error to Circuit Court, Hillsborough County; A. V. Long, Judge.

Louis Leavine was convicted of first degree murder, and he brings error.

Affirmed.

COUNSEL Herbert S. Phillips, of Tampa, for plaintiff in error.

Cary D Landis, Atty. Gen., Roy Campbell, Asst. Atty. Gen., and Charles B. Parkhill, State Atty., and John B. Sutton, both of Tampa, for the State.

OPINION

ELLIS Justice.

At the fall term of the circuit court for Hillsborough county in 1930 Victor Palmer was indicted for the murder of Joseph B Johnson by shooting him with a pistol. Louis Leavine and Norman Heidt were charged in the same indictment as principals in the second degree. The indictment alleged that they were present unlawfully, and from a premeditated design to effect the death of Johnson, aiding and abetting procuring and counseling Palmer to commit the murder. See Henry v. State, 81 Fla. 763, 89 So. 136; Brown v. State, 82 Fla. 306, 89 So. 873.

At the fall term, 1931, the jury returned a verdict against Leavine of murder in the first degree, and on March 9, 1932, judgment of conviction and sentence of death were entered against him; Hon. A. V. Long, judge of the Eighth circuit presiding under executive order dated March 1, 1932. Leavine was arraigned and pleaded not guilty on January 4, 1932; Hon. F. M. Robles, judge of the Thirteenth circuit for Hillsborough county presiding.

The offense was alleged to have been committed on January 18, 1931. Palmer and Heidt were arraigned and pleaded not guilty on February 26, 1931, about a week after the indictment was filed during the fall term, 1930. Thus it appears that Leavine's arraignment and conviction occurred about a year later.

Leavine seeks here a reversal of his conviction on writ of error which was taken on September 1, 1932, about five months and three weeks after his conviction and returnable to this court two months and twentyone days after the date of the writ.

The first assignment of error rests upon an order 'quashing the regular and special panel of jurors out of which a jury was to be selected for the trial of defendant on the 29th day of February, 1932, over the objection and protest of counsel for defendant.'

The brief of counsel for Leavine states that in March, 1931, Leavine not having been arrested, a severance was granted, and Palmer and Heidt were placed on trial; that they were convicted of murder in the first degree; that a writ of error from this court to that judgment resulted in an affirmance. Palmer v. State (Fla.) 143 So. 126.

The bill of exceptions discloses that on February 29, 1932, issue having been joined, the jurors summoned for the trial were called and, before being sworn on their voir dire, the judge, Hon. L. L. Parks, judge of the Thirteenth circuit for Hillsborough county, after making some preliminary remarks about the nature of jury service, the incorruptibility of the courts, and alleged attempts to tamper with jurors and the jury box in other cases, and attempts to bribe jurors in the instant case, evidence of which had come to him, stated that it was his purpose to examine each person whose name appeared upon the list of those called to serve as jurors in order that he might be informed whether 'any improper approach' had been made to any of them. The purpose of the statement as made by the court taken in its entirety clearly showed that the court desired to inform those to whom he spoke of certain rumors which had come to the judge concerning efforts made by interested persons to improperly influence those whose names appeared on the list of persons called to serve as jurors in the case, and that he desired by such questioning to ascertain to what extent such rumors were true and how such attempts, if any had been made, affected the panel. The court then proceeded to question eighty-one persons who had been summoned to serve as jurors.

This procedure was not objected to by counsel and no exception to it taken. The result of the questions and answers disclosed that in a few instances designing persons had sought by one means or another to influence the minds of some of those who had been called to serve as jurors in the case, but as to the greater unmber of such proposed jurors no evidence of intended corruption of them appeared from their answers to the judge's questions.

At the conclusion of the interrogation, however, the judge announced that in his opinion the evidence warranted the quashing of the venire. He then made an order quashing the venire.

To this order counsel for Leavine objected. The grounds were that no evidence justified the order; that it was an abuse of discretion on the court's part to quash the panel; that it was a reflection upon the honesty of every juror who had told the court that no one had approached him; that it is 'an assumption apparent on the part of the court that he is afraid to trust these jurors who have said under oath that they knew nothing about the case and had not been approached' and that it was a 'grossly unfair action on the part of the court towards the defendant now on trial.' The court treated the objection to the order as a motion of some kind, and entered an order that the 'motion be denied,' and noted an exception. The court then stated that counsel's assertion of the court's lack of confidence in the persons called as jurors was unfair. The court then called the names of certain of those whom he had interrogated, and requested them to remain, as he wished to 'take this matter up further' with them after the others had gone, and discharged them. This phase of the case, which occurred February 29, 1932, was preserved by a special bill of exceptions which was signed May 23, 1932.

On March 2, 1932, the attorney for Leavine moved the disqualification of Judge Parks. The motion for disqualification was supported by the defendant, Leavine, as to the facts on which the disqualification was alleged to exist and the affidavits of two others in support of some of the allegations contained in Leavine's affidavit relating to the proceedings occurring in court when Leavine's trial began on January 19, 1932. Attached to the motion, as an exhibit, was a copy of the special bills of exceptions minus the court's certificate, so that the special bill of exceptions appears twice in the record covering more than one hundred and seventy-one pages of typewritten matter, more than half of which was unnecessary, the costs of which the county will be called upon to pay on account of the order as to Leavine's insolvency.

Judge Parks then made an order disqualifying himself, and the Honorable A. V. Long, judge, sat in the trial of the defendant. When the court convened with Judge Long presiding, counsel for Leavine interposed a suggestion that Judge Long was without authority to preside at the trial. Several grounds were urged as the basis of the motion or suggestion. The motion was denied. A motion for a change of venue was presented and then withdrawn. Several more pages of typewritten matter appear at this place unnecessarily. They relate to the examination of the jurors by the court to ascertain if a fair trial was impossible to be obtained.

Now in the record proper the court's statement to the persons called as jurors, and his examination of them as to how and in what manner, if at all, they had been interviewed by interested persons and sought to be influenced in the discharge of their duties, appears for the third time in the transcript, covering seventy-seven or more pages of typewritten matter, making in all about two hundred and fifty pages of which less than fifty pages were necessary to present the transaction as it occurred and on which complaint of error was based.

There also appears in the record proper the motion to disqualify Judge Parks, together with the affdavits and exhibit, thus introducing in the transcript for the fourth time the subject-matter of the special bill of exceptions and adding about ninety-two more typewritten pages to be paid for by the county. In all about three hundred and forty-one pages of the transcript consist of padding, reiteration unnecessarily of the same incidents of the trial wholly unnecessary to a presentation of the point involved and unjustified as an item of expense to be charged to the county and to be paid from the public funds.

This is such a manifest abuse of the rules prescribed for the preparation of transcripts of the record as to justify a dismissal of the cause and an order that no part of the expense of its preparation be charged to and paid by the county, but, because of the gravity of the case, the assignments of error discussed will be considered.

The brief states that a challenge to the 'panel and array of jurors before the court on March 2, 1932,' was made and overruled. No reference is made in the brief, however, to the page in the transcript where such challenge appears.

The above statement of facts contains a recitation of the grounds on which the first three assignments of error were made. The second and third assignments attacking the qualifications of Judge Long and the order overruling the challenge to the panel were abandoned, which leaves for discussion the propriety of the order discharging the persons who were called to serve as jurors based upon the judge's examination of them touching the matter of their possible subjection to improper influences.

The record discloses that on January 25, 1932, Leavine by his counsel moved the court to immediately set the cause for trial and to draw from the jury box before the same was refilled for the present year a venire of jurors from which to select a...