Livingston v. State

• Citation: 140 Fla. 749,192 So. 327
• Parties: LIVINGSTON v. STATE.
• Decision Date: 24 November 1939
• Court: Florida Supreme Court

192 So. 327

140 Fla. 749

LIVINGSTON v. STATE.

Florida Supreme Court, Division B.

November 24, 1939

Error to Circuit Court, Broward County; George W. Tedder, Judge.

Clarence Livingston was convicted of murder in the first degree, and he brings error.

Reversed and new trial ordered.

COUNSEL

Roach & Hoyl, of Fort Lauderdale, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for defendant in error.

OPINION

PER CURIAM.

Writ of error from the Circuit Court of the Fifteenth Judicial Circuit, Broward County. Plaintiff in error, hereafter called defendant, is charged with murder in the first degree of one Rufus Sapp, a boy 18 years old. Defendant, Clarence Livingston, owned and operated a colored dry cleaning establishment in Ft. Lauderdale. He purchased a load of wood from one Naaman Harris, paying part of the purchase price then and promising to pay the rest later. On the following Sunday Clarence saw Rufus, step-son of Naaman and gave him, as he alleged, the remainder of the purchase price to give Naaman. Rufus delivered only part of the money to Naaman, who went to defendant to collect the remainder. Defendant swore he had paid Rufus in full. An argument followed, taking place on the premises of defendant. Defendant went into his house, returning a few minutes later with a pistol, with which he shot Rufus. The gun was fired twice but only one bullet hit Rufus.

Defendant immediately went to the police station and gave himself up saying he had shot a boy in a fit of passion in an argument over a dollar. Indictment was filed, and defendant interposed a plea in abatement, alleging that the person signing the indictment as Prosecuting Attorney had no authority to do so. Prosecuting Attorney filed a demurrer to the plea in abatement, same being sustained.

At the trial defendant tried to introduce an alleged map of the premises to show the relative positions of the houses, streets, and lots. Court refused to allow the map into evidence, and this was assigned as error.

In his argument to the jury, Assistant Prosecuting Attorney mentioned the fact that in the recent McCall Kidnapping case it was shown that McCall was of excellent character and the son of a preacher. These statements were made by reason of the fact that defendant's character had been put in issue, and had been shown to be very good.

The jury returned a verdict of guilty of murder in the first degree, with a recommendation of leniency. Defendant moved for a new trial, which was denied. The seventh and either assignments of error are based on Assistant Prosecuting Attorney's remarks concerning the character and reputation of Franklin P. McCall. In his motion for a new trial, this point was urged. It was error to overrule the objection, and not instruct the jury to disregard the improper remarks of counsel. As was said in Henderson v. State, 94 Fla. 318, 113 So. 689, 696:

'While it is the duty of the trial judge, whether requested or not, to check improper remarks of counsel to the jury, and to seek by proper instructions to the jury to remove any prejudicial effect they may be calculated to have against the opposite party, the general rule is that a verdict will not be set aside by an appellate court because of such remarks or because of any omission of the judge to perform his duty in the matter, unless objection was made at the time of their utterance and a ruling of the court secured thereon and an exception to such reling duly taken. Graham v. State, 72 Fla. 510, 73 So. 594, and cases cited; Akin v. State, 86 Fla. 564, 98 So. 609; 16 C.J. 914. This rule is, however, subject to the exception that if the improper remarks are so obviously prejudicial and of such a character 'that neither rebuke nor retraction may entirely destroy their sinister influence,' a new trial should be awarded regardless of the want of objection or exception. Akin v. State, supra; 16 C.j. 914.'

It is our opinion that the remarks made by Assistant Prosecuting Attorney were prejudicial to the fair trial of defendant, inasmuch as the crime charged to McCall was committed very near Broward County just a short time before this trial and aroused such widespread publicity, creating strong public sentiment against anyone charged with committing a crime.

This is sufficient to reverse the judgment of the trial court and order a new trial, but inasmuch as there are certain points raised here that may be raised on the...