Lee v. State, 31489
| Decision Date | 09 May 1962 |
| Docket Number | No. 31489,31489 |
| Citation | 141 So.2d 257 |
| Parties | Charles H. LEE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
J. Frank West, Williston, and Ira J. Carter, Jr., Gainesville, for appellant.
Richard W. Ervin, Atty. Gen., and B. Clarke Nichols, Asst. Atty. Gen., for appellee.
September 21, 1960, appellant, Charles H. Lee, was indicted for murder in the first degree by a grand jury in Levy County in that on September 12, 1960, he did feloniously shoot and kill Leroy A. Collins with a deadly weapon. Defendant was adjudged insolvent by the trial court who appointed counsel to represent him. To the said indictment a plea of not guilty and a plea of not guilty by reason of insanity were entered. Later the defendant abandoned his plea of not guilty by reason of insanity and stood trial on the plea of not guilty. At the trial the jury found defendant guilty of murder in the first degree without recommendation to mercy. A motion and an amended motion for new trial were made and overruled and the death penalty was imposed. We are confronted with an appeal from the order and judgment of the trial court imposing the death penalty.
The first question urged for our determination is one with a double aspect. The first aspect is this: Where it is shown that one of the jurors who tried defendant had formed an opinion and made statements before the trial that if he could get on the jury he would give the defendant the 'works,' did the court commit reversible error in denying the motion for new trial? The second aspect of the first question charges that the trial court committed reversible error in denying the motion for new trial when it was shown that during the course of the trial the jury was quartered in a hotel owned and operated by one of the jurors who stated before trial that if he could get on the jury he would see that the defendant got the 'works.'
We treat both aspects of the question together. It is shown that the contention of appellant is bottomed entirely on an affidavit of one Lonnie Crews who stated under oath that he heard one of the jurors, L. C. Gibbs, state prior to the trial of appellant substantially as follows: 'I am afraid they will throw me off the jury, but if I stay on it I will see that Lee [appellant] gets the works.' The record shows that the trial judge held a hearing on appellant's motion for new trial December 28, 1960. At this hearing the judge required the court reporter to read from his notes the complete examination of the juror L. C. Gibbs [No. 12] at the time he [Gibbs] was seated in the jury box and ultimately selected and sworn as a juror to try appellant. The record further shows that during the course of the hearing on appellant's motion for new trial, the court again placed the juror L. C. Gibbs under oath, permitting counsel for the state and the appellant to examine him. The court also examined the said juror as to his qualification to try appellant. In conclusion, it appears from the examination of the said juror, Gibbs, on voir dire that he denied having formed or expressed an opinion as to the guilt or innocence of appellant. At the time of hearing on appellant's motion for new trial, the juror Gibbs again denied that he had formed an opinion as to the guilt or innocence of appellant prior to the trial and he unequivocally denied that he had made the statement alleged by affiant, Lonnie Crews, to have been made by him.
In this state of the record it was incumbent upon the trial court to resolve the question of fact as to the alleged prejudice of the juror Gibbs. After fair and impartial inquiry the trial court resolved both aspects of the first question against the contention of appellant. Russ v. State, Fla.1957, 95 So.2d 594, and Berry v. State Fla.1957, 95 So.2d 594, and Berry v. State, of the showing made the trial court's holding was free from error as to the first question.
It is last contended that the evidence is not sufficient to support the verdict of murder in the first degree, particularly is it deficient on this point, in that it does not show the element of premeditation.
In a trial for murder in the first degree, premeditation is a question of fact for the jury. Larry v. State, Fla.1958, 104 So.2d 352; Smith v. State, Fla.1956, 90 So.2d 304, and and McCutchen v. State, Fla.1957, 96 So.2d 152.
We have examined the evidence and we think it is ample to support the verdict of...
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