Lowman v. State

• Decision Date: 10 June 1920
• Citation: Lowman v. State, 80 Fla. 18, 85 So. 166 (Fla. 1920)
• Parties: LOWMAN et al. v. STATE.
• Court: Florida Supreme Court

85 So. 166

80 Fla. 18

LOWMAN et al. v. STATE.

Florida Supreme Court

June 10, 1920

Rehearing Denied July 5, 1920.

Error to Circuit Court, Hernando County; W. S. Bullock, Judge.

A Irving Lowman and Floyd Braswell were convicted of murder in the first degree, and they bring error.Affirmed.

Browne C.J., and Taylor, J., dissenting in part.

Syllabus by the Court

SYLLABUS

Where the evidence does not expressly locate the crime as having been committed in the county charged in the indictment, but there are in the evidence references to various localities and landmarks at or near the scene of the crime, known by or probably familiar to the jury, and from which they may have reasonably concluded that the offense was committed in the county alleged, it is sufficient proof of venue.

Venue need not be established beyond a reasonable doubt.If the evidence raises a violent presumption that the offense was committed within the county, or if the evidence refers to localities and landmarks at or near the scene of the alleged offense, known or probably familiar to the jury, from which they may reasonably infer that the offense was committed in the county, it will be sufficient.

To render dying declarations admissible, the judge must be fully satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable and that he entertained no hope of recovery.This absence of all hope of recovery, and appreciation by the deceased of his speedy and inevitable death is a preliminary foundation that must always be laid to make such declarations admissible.It is a mixed question of law and fact for the judge to decide before permitting the introduction of the declaration itself.It is not necessary that such preliminary test should consist of express utterances, but it may be gathered from any circumstances, or from all the circumstances of the case.

In the trial for a capital offense, if an adult defendant, observed by the court or its officers, voluntarily goes into a room adjoining the courtroom for purposes of his own, and remains for a very few moments while a witness for the state is being examined, or while a proposed juror is being examined on his voir dire, the defendant being represented by counsel, such temporary and voluntary absence from the courtroom during the progress of the trial is not a violation of the defendant's organic or statutory rights, and will not cause a reversal of a judgment of conviction that is amply supported by competent evidence, and it does not appear that the defendant could have been harmed or prejudiced by his voluntary absence for such a brief time during the trial.

COUNSELThomas Palmer, of Tampa, and George C. Martin and F. B. Coogler, both of Brooksville, for plaintiffs in error.

Van C. Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.

OPINION

WHITFIELD J.

Upon an indictment charging murder in the first degree in Hernando county, Fla., by fatally shooting Ben T. Harrell, 'unlawfully and from a premeditated design to effect the death of the said Ben T. Harrell,'the plaintiffs in error were convicted of murder in the first degree, with a recommendation to mercy, and took writ of error to a judgment imposing a life sentence.

It is contended here that 'no venue whatever' was proven; that the court erred in admitting in evidence 'the so-called dying declaration of Ben T. Harrell,' the deceased, and that the motion for new trial was erroneously denied, in that it was shown 'that the defendantsA. Irving Lowman and Floyd Braswell were absent from the courtroom and out of the hearing of the trial of said cause during a material part of the proceeding of said cause.'

Where the evidence does not expressly locate the crime as having been committed in the county charged in the indictment, but there are in the evidence references to various localities and landmarks at or near the scene of the crime, known by or probably familiar to the jury, and from which they may have reasonably concluded that the offense was committed in the county alleged, it is sufficient proof of venue.Duncan v. State,29 Fla. 439, 10 So. 815;McCune v. State,42 Fla. 192, 27 So. 867, 89 Am. St. Rep. 225;Leslie v. State,35 Fla. 184, 17 So. 559;Smith v. State,29 Fla. 408, 10 So. 894;Andrews v. State,21 Fla. 598;Bryan v. State,19 Fla. 864;Hopkins v. State,52 Fla. 39, 42 So. 52;16 C.J. 769.

If the proof of venue does not come within the rule above announced, it will be insufficient.Warrace v. State,27 Fla. 362, 8 So. 748;McKinnie v. State,44 Fla. 143, 32 So. 786;Smith v. State,42 Fla. 236, 27 So. 868;Cook v. State,20 Fla. 802;Robinson v. State,20 Fla. 804;Evans v. State,17 Fla. 192;McCoy v. State,17 Fla. 193.

Venue need not be established beyond a reasonable doubt.If the evidence raises a violent presumption that the offense was committed within the county, or if the evidence refers to localities and landmarks at or near the scene of the alleged offense, known or probably familiar to the jury, from which they may reasonably infer that the offense was committed in the county, it will be sufficient.Warrace v. State,27 Fla. 362, 8 So. 748;Andrews v. State,21 Fla. 598.

In this case there is testimony that the homicide was committed at a place or town called Istachatta, which the trial court and the jury must have known, and this court knows, is in Hernando county.SeeHoward v. State,172 Ala. 402, 55 So. 255, 34 L. R. A. (N. S.) 990;Dupree v. State,148 Ala. 620, 42 So. 1004;16 C.J. 770;Commonwealth v. Kaiser,184 Pa. 493, 39 A. 299.It is not material whether Istachatta be incorporated or not; it is a village and a station on a railroad with a post office in Hernando county, Fla.See15 R. C. L. 1083, 1085, 1118;Central Railroad & Banking Co. v. Gamble,77 Ga. 584, 3 S.E. 287;Smith v. Flournoy,47 Ala. 345.The venue was sufficiently shown.Leslie v. State,35 Fla. 184, 17 So. 559.

A witness for the state testified that he saw the deceased the morning after he was shot, and that----

'I asked him if he didn't think he was getting along pretty well, and would get over it, and would be all right in a short time, and he said: 'No; they have got me.I can't get over it.'I asked him again: Perhaps he wasn't as badly wounded as he thought he was, and he repeated about the same; he first said, he says, 'They have got me; I can't get over it; I can't recover.'Q.Did he state to you in so many words, or to that effect, that he was expecting immediate death--right now?A.No; he didn't say that in those words; no, sir.Q.Did he say anything to you that he himself had no hope of recovery?A.He didn't use those words.Q.He simply said, 'They have got me'?A.Yes.Q.And, 'I don't expect to get well; I don't expect to recover'?A.'I can't live.'Q.'I can't live'?A.He used on one occasion.Q.But did he say a single word that he expected the result to be immediate?A.He didn't say that.'

'In the case of Lester v. State,37 Fla. 382, 20 So. 232, it was held that: 'To render dying declarations admissible, the judge must be fully satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable, and that he entertained no hope of recovery.This absence of all hope of recovery, and appreciation by the deceased of his speedy and inevitable death is a preliminary foundation that must always be laid to make such declarations admissible.It is a mixed question of law and fact for the judge to decide before permitting the introduction of the declaration itself.It is not necessary that such preliminary test should consist of express utterances, but it may be gathered from any circumstances or from all the circumstances of the case.'Dixon v. State,13 Fla. 636;Richard v. State,42 Fla. 528, 29 So. 413;Clemmons v. State,43 Fla. 200, 30 So. 699;Gardner v. State,55 Fla. 25, 45 So. 1028.'Copeland v. State,58 Fla. 26, 50 So. 621.

Guided by these authorities and the cases therein approvingly cited, we do not think the court erred in admitting the declarations of the deceased in this case.Copeland v. State,58 Fla. 26, 50 So. 621;Newton v. State,51 Fla. 82, 41 So. 19;Richard v. State,42 Fla. 528, 29 So. 413;Clemmons v. State,43 Fla. 200, 30 So. 699.

Grounds of the motion for new trial assert that the defendants were at different times each voluntarily absent from the courtroom for a few minutes during the trial, and affidavits in support of the assertions were filed.In denying the motion for new trialthe court must have regarded the asserted brief voluntary absences of the defendants from the courtroom during the trial as not harmful to the defendants, or else that he held the affiants to be mistaken in a matter that he was cognizant of.It is suggested for the state that the matter cannot properly be presented by affidavits after the trial.Van Houton v. People,22 Colo. 53, 57, 43 P. 137.If the trial court had observed or had been advised of an absence of the defendants or either of them from the courtroom during the trial, he doubtless would have made the bill of exceptions so state as a part of the proceedings in pais.In this casewe will not hold that the matter was not properly presented by motion for new trial supported by affidavits.The state presented no counter affidavits.

An affidavit of A. Irving Lowman states:

'That during the trial of said case, and while the jury was being examined as to its qualifications to try said cause, and while a prospective juror was being examined as to his qualifications to sit in said cause, this affiant being anxious to learn something, if possible, concerning the juror being so examined, and

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