Lowe v. State

• Decision Date: 27 July 1925
• Citation: 105 So. 829,90 Fla. 255
• Parties: LOWE v. STATE.
• Court: Florida Supreme Court

105 So. 829

90 Fla. 255

LOWE v. STATE.

Florida Supreme Court

July 27, 1925

En Banc.

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

Nathan Lowe was convicted of murder in the first degree, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Circumstantial evidence alone sufficient. Circumstantial evidence alone is therefore sufficient to support a verdict of the most heinous crime, provided the jury believe beyond a reasonable doubt that the accused is guilty upon the evidence, and this cannot be when the evidence is entirely consistent with innocence.

Premeditation essential element in murder in first degree, must be determined by jury. Under our statute, murder in the first degree must be perpetrated with a 'premeditated design to effect the death of the person killed.' Premeditation is therefore an essential incident of murder in the first degree, and, like other facts, must be determined by the jury.

Fatal blow in first degree murder must not be incident of mania or sudden passion. The fatal blow must not be the incident of mania or a sudden paroxysm or heat of passion such as suspends the cool normal state of the mind, but as to whether there has been such premeditation is a question for the jury to be determined by them from a consideration of all the facts under the instructions given by the court.

Jury judges of credibility and weight of evidence indicating premeditated design. Whether a homicide was committed with premeditated design to kill or in a sudden paroxysm of passion is for the jury to determine from the evidence on this point. They are also the judges of the credibility and weight of the evidence.

COUNSEL

J. P. Huntley, of Lake City, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.

OPINION

TERRELL J.

Nathan Lowe was indicted, tried, and convicted for murder in the first degree. The sentence of death was imposed, and he brings his case here by writ of error seeking reversal on certain rulings of the trial court with respect to the admission or exclusion of evidence, the denial of the motion for an instructed verdict in his favor, and the refusal to grant his motion for a new trial, which was based primarily on the insufficiency of the evidence to sustain the verdict.

The evidence is very largely circumstantial, and is to the effect that the body of Florence Henderson was found concealed in a gall berry and palmetto patch near McCloskey's turpentine quarters some miles east of Lake City about the 26th of August A. D. 1924. Her neck was broken, and there was an indentation made by a blunt instrument on the side of her head above the ear, which the examining physician testified would have been fatal. There were also minor bruises on various parts of the body. W. L. Gilbert testified that about midnight of the night before the body was recovered the husband of the deceased came to his house, and stated that his wife was missing; that he (Gilbert) got up and went to the negro quarters, and found several negroes congregated in front of the house of the deceased; that he made inquiry, but none of them knew anything about her, when he told them that they would all make a little search for her. He (Gilbert) called some of the negroes by name, and also called Nathan Lowe, the defendant, who answered that he would be ready in a minute. The search was then started, and as they passed defendant's house he said, 'Wait a minute,' and stepped in his house at the side door brought out a bundle with him, and ran to the other end of the house, but returned in a very short time, and stated that he was ready. Gilbert sent two of the negroes back to see what the bundle was Lowe came out with and put under his house, and they reported that it was some wet clothes. The search was continued in a kind of circle without results, when all returned to or near where they had started, and Gilbert stated to them that he would hold them there in custody until daylight. Nathan Lowe responded to this statement with three loud grunts, 'Umph! Umph! Umph!' Gilbert further testified that the place he held them in custody until daylight was in front of Nathan Lowe's house; that he, Lowe, kept going in and out of his house the balance of the night, first in the kitchen and then in the bedroom; that he would lie down on the floor, and then on the bed; that he was very restless, and changed his clothes three times during the night, would wallow on the floor, pack his suit case, and hang his gun in a different place. Just before daylight Gilbert examined the clothes that Lowe had put in the suit case, and found them to be the same ones he had seen on Lowe late the afternoon before when he (Lowe) came from fishing with a sack of fish.

About 3 o'clock in the morning Gilbert examined the wet clothes that Lowe had put under the end of his house, and found them to be stained with blood. He also sent for Mr. Willington, and, as soon as it was daylight, Gilbert, Willington, and the six or eight negroes that he (Gilbert) had had in custody started anew the search for the deceased. The search had proceeded about one quarter of a mile, when one man announced that he had found the body. Gilbert, who had Lowe with him, started to where the body was, and Lowe acted like he wanted to cry, and said he did not want to see her. Gilbert further testified that there were two places near where the body was found where the grass and bushes were 'tromped down,' indicating a scuffle; that there was some blood at one of the places, and at the other one a scrap off of Lowe's 'britches,' and a scrap off of his jumper was picked up; and that these scraps 'fitted right in the places' and came off the clothes he (Lowe) had on when last seen the evening before.

The testimony of Gilbert was corroborated in every material detail by other witnesses, who in addition testified that they saw blood on Lowe's jumper; that Lowe and the deceased were in the commissary together between 7:30 and 8 o'clock the afternoon before the body was found; that about 8:30 the same evening Lowe was seen at the house of the deceased chasing her from her house toward the woods in the direction where her body was found, and was heard to slap her, and was heard to say to her, 'You do not want to mess with me; I will kill you, woman.' The evidence also shows that about five minutes after Lowe chased her from her house she was heard to 'hollow' twice; that Lowe was gone about an hour from the time he chased her off, and returned without her; that he had previously been heard fussing with the deceased in her kitchen; that he returned from the chase excited and trembling in his talk; that he was seen with a hoe about his house looking constantly in the direction deceased was found, and remarked to one of the witnesses after his return from the chase that 'the rat is out and the cat is about to catch him.' Lowe in his own behalf denied every material allegation testified to for the state.

Assignments 1 to 6, inclusive, relate to the objections of defendant to testimony introduced on the part of the state. We have considered these assignments carefully, and do not think any of them constitute reversible error.

The seventh assignment is grounded on the refusal of the trial court to grant defendant's motion for an instructed verdict, and the eighth assignment alleges error in his refusal to grant defendant's motion for a new trial. These assignments treat only the sufficiency of circumstantial evidence to support a verdict for homicide and what showing must be made to constitute premeditation. We will discuss them together.

Circumstantial evidence may be said to be the inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts. It is in the nature of things frequently necessary to resort to it to prove guilt in criminal proceedings. The criminal always, if possible to do so, selects the occasion most favorable to concealment to indulge his appetite for crime and lust when no eyewitnesses are about to behold him. Circumstantial evidence alone is therefore sufficient to support a verdict of guilty of the most heinous crime, provided the jury believe beyond a reasonable doubt that the accused is guilty upon the evidence, and this cannot be when the evidence is entirely consistent with innocence. Vernon v. U. S., 146 F. 121, 76 C. C. A. 547; U.S. v. Greenbaum (D. C.) 252 F. 259; Martin v. State, 125 Ala. 64, 28 So. 92; Underhill's Criminal Evidence (3d Ed.) 14.

It has been said that witnesses may lie but that circumstances never do. In this case all the circumstances from which guilt may be inferred are proven by the direct evidence of witnesses who saw them. When taken in connection with positive facts testified to and which the jury evidently took to be true beyond a reasonable doubt they form a complete chain pointing to the guilt of the defendant and are irreconcilable with any reasonable theory of his innocence and exclude to a moral certainty every hypothesis but that of his guilt, which is all the law requires. Gantling v. State, 40 Fla. 237, 23 So. 857, and cases cited; Underhill's Criminal Evidence (3d Ed.) 17, citing many cas...