Mccall v. State

• Decision Date: 15 February 1939
• Citation: 186 So. 667,136 Fla. 343
• Parties: McCALL v. STATE.
• Court: Florida Supreme Court

186 So. 667

136 Fla. 343

McCALL v. STATE.

Florida Supreme Court

February 15, 1939

Franklin Pierce McCall was convicted of kidnapping for ransom, and the death penalty was imposed. On application for a stay order to withhold execution of final judgment for such time as was essential to permit him to apply to the Supreme Court of the United States for writ of certiorari.

Stay order denied.

COUNSEL C. A. Avriett and E. C. Rutledge, both of Jasper, for plaintiff in error.

George Couper Gibbs, Atty. Gen., Lawrence A. Truett and Tyrus A Norwood, Asst. Attys. Gen., and G. A. Worley, State Atty., of Miami, for the State.

OPINION

TERRELL Chief Justice.

This is an application by the plaintiff in error, Franklin Pierce McCall, for a stay order pursuant to Section 350, Title 28 U.S.C.A. to withhold the execution of the final judgment herein for such time as is essential to permit him to apply to the Supreme Court of the United States for writ of certiorari. The judgment was entered January 3, 1939, Fla. 185 So. 608, and petitions for rehearing were denied February 10, 1939, Fla., 186 So. 510. It affirmed a conviction for kidnapping for ransom in violation of Chapter 16063, Acts of 1933, for which the death penalty was imposed. The essential facts are stated in the opinions filed on the dates stated above.

In Williams et al. v. Keys et al., Fla., 186 So. 250, filed January 28, 1939, the circumstances warranting the granting of a stay order were considered and it was there held that such an order should not be granted unless it was made to appear (1) that the case is one that would likely be taken up on certiorari and (2) that the balance of convenience requires a suspension of the decree and a withholding of the mandate. It was further held that the necessary prerequisite for such a review is the exemplification of a federal question that was affirmatively presented, that its decision was necessary to the determination of the cause, that it was actually decided or that the judgment as rendered could not have been so without deciding it.

The defendant attempts to bring himself within this rule by proclaiming that he was denied the right of counsel before arraignment and in preparation for his trial, contrary to the fifth sixth, and the due process clause of the fourteenth amendments to the Constitution of the United States, U.S.C.A. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Downer v. Dunaway, 5 Cir., 53 F.2d 586, are relied on to support this contention.

The pointed question decided in these cases was that in a capital case where defendant is unable to employ counsel and is incapable of adequately making his own defense because of ignorance, feeblemindedness, illiteracy, or for other cause, it is the duty of the Court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law and that that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.

In the cited cases, it was held that this rule was ignored and the defendants were thereby denied fundamental rights guaranteed them by the Federal Constitution but it was shown that defendants entered a plea of not guilty and were denied the right of counsel at all times during the trial. They were unlettered, in a strange county, away from friends, and in the Powell and Downer cases, defendants were under the care of the State troops at every step in the trial and before it to prevent mob violence.

In the case at bar, the facts were very different and the facts provoke the law under our system of jurisprudence. Counsel should not overlook this. It is true that defendant did not have the benefit of counsel before arraignment but able counsel was immediately thereafter appointed to represent him and he was in fact represented at the trial. The crime with which he was charged was committed on May 28, 1938; he was arrested June 5th by the Federal Bureau of Investigation, made a full confession, was indicted on June 14th, arraigned and plead guilty the same day and his trial was set for the following day. At the hour set for his trial, the State and the defendant announced ready for trial, no further time was asked for preparation though the court inquired of defendant's counsel if he had any motions to offer. He could have changed his plea and could have asked for more indulgence at this time but he declined to do so. Offering no motion, the trial proceeded, the State put on its evidence, and the defendant took the stand and made a full and complete confession of the crime for which he was charged.

The trial was conducted according to every legal requirement; there was no suggestion of mob violence; the defendant was at no time in fear or duress; he voluntarily took the stand and for the third time, made a full and complete confession reciting in meticulous detail how he abducted his victim, James Bailey Cash, Jr., how he asphyxiated and killed him in getting away, for which he is also under indictment for murder in the first degree, and how he received the ransom money.

He now contends that he was denied the advice of counsel in that he did not have the counsel of his choice. The fundamental guaranty of the right of counsel is for the purpose of preparing one's defense and to see that he has a legal trial. When the defendant voluntarily confesses committing the crime and enters a plea of guilty, there is no...