McCollum v. State

• Decision Date: 20 July 1954
• Citation: 47 A.L.R.2d 1218,74 So.2d 74
• Parties: McCOLLUM v. STATE.
• Court: Florida Supreme Court

Page 74

74 So.2d 74

47 A.L.R.2d 1218

McCOLLUM v. STATE.

Supreme Court of Florida, En Banc.

July 20, 1954.

Frank T. Cannon, Releford McGriff, P. Guy Crews, Jacksonville, for appellant.

Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., Wm. Randall Slaughter, State Atty., Live Oak, O. O. Edwards, Asst. State Atty., Cross City, for appellee.

SEBRING, Justice.

Ruby McCollum was indicted for the murder of Dr. Leroy Adams. She was tried and found guilty and the death penalty was imposed. She has appealed from the judgment and sentence.

According to the record Ruby McCollum went to the office of Dr. Adams, on a Sunday morning, for medical treatment. While there she had some discussion with Dr. Adams about a medical bill that had been mailed to her husband. Witnesses for the prosecution, who claimed to be eyewitnesses, testified that after an exchange of words about payment of the bill the defendant shot the doctor in the back as he walked away from her in the treating room with the parting words, 'Woman, I'm tired of fooling with you.' The defendant admitted having the discussion with the doctor but testified that she shot in necessary self-defense after the doctor became angry and attacked her.

The first ground urged by the defendant for the reversal of the judgment and sentence is that during the progress of the trial the trial judge ordered a view of the premises where the homicide occurred and that the view was had out of the presence of the trial judge and defendant.

In respect to this ground it is shown by the record that after the prosecution had rested its case in chief, counsel for the defendant made a motion that the court order the jury to view the premises where the shooting took place, and that the state attorney made a similar motion. The motions were granted, and after the trial judge had properly admonished the officer in charge of the jury in respect to his duties at the view, section 918.05, Florida Statutes 1951, F.S.A., the jury, in proper custody of the sheriff, left the courtroom to view the scene. It is apparent from the record that the defendant did not accompany the jury, but, during the 25-minute period that the jury was absent for the view, stayed in the courtroom with her counsel. It is also apparent from the record that the trial judge was not with the jury during all the time they were present at the scene but, if present at all, was present only during the latter part of the view.

After the jury had returned from the scene, a recess of the trial was taken until the following morning, at which time the following transpired:

'The Court: Gentlemen of the Jury: I am advised that on yesterday on the occasion of the view--I was not over there all the time--I went over there during the latter part of it--that the defendant was not over there with you. So you will go back, you are going to be sent back for a further view, and the defendant will go with you. Is Mr. Jernigan in the courtroom?

'Mr. Jernigan: Yes, sir.

'The Court: You will arrange to let them go in. All right, gentlemen, proceed over there and take another view of the premises and let the defendant go along with them. You are under the same instructions as you were yesterday.

'[State Attorney]: Is there any objection to counsel going along?

'The Court: Not a bit; all of you can go. (Whereupon, the jury left the courtroom accompanied by the sheriff and two bailiffs, and also accompanied by the defendant, Ruby McCollum, to view the premises again, and thereafter returned to the courtroom.)'

Parenthetically, it will be noted that the record fails to reflect that the trial judge was present at the second view.

No objections were made by the defendant to either view of the premises until after the verdict had been returned against the defendant. The first time objections were registered to the fact that the defendant, and the trial judge, were absent from either view, was in the motion for new trial filed by the defendant.

The issue is whether under the circumstances narrated the trial court committed error necessitating a new trial.

Section 914.01, Florida Statutes 1951, F.S.A., provides that in all prosecutions for felony the defendant shall be present at arraignment; when a plea is made; at the calling, examination, challenging, impaneling and swearing of the jury; at all proceedings before the court when the jury is present; when evidence is addressed to the court out of the presence of the jury for the purpose of laying the foundation for the introduction of evidence before the jury; at the rendition of the verdict; and at a view by the jury.

It is provided by section 918.05, Florida Statutes 1951, F.S.A., that the trial court may order the jury to view the place where an offense appears to have been committed, and that at such view the trial judge shall be present, and that the defendant shall be present also, unless the defendant 'absents himself without permission of court.'

Before the enactment of the preceding statutes, the nature of the view in this jurisdiction was clearly defined. As is stated in Washington v. State, 86 Fla. 533, 98 So. 605, 607: 'The primary purpose of a view by the jury is to assist them to analyze and apply the evidence taken at the trial. * * * Under the law in this state no evidence can be taken at the view and no proceeding can be had that would in any manner be harmful to a defendant.' See also O'Berry v. State, 47 Fla. 75, 36 So. 440. Although a different rule was acknowledged to be applicable in those jurisdictions which hold that at the view the jury is receiving evidence, this Court, in Washington v. State, supra, after determining that under Florida law the view is not a part of the trial, concluded that 'there is therefore no ground, either upon legal principle or upon practical fairness, for holding the presence of the accused himself to be essential.'

It must be noted, however, that in Haynes v. State, 71 Fla. 585, 72 So. 180, 183, cited as authority for Washington v. State, supra, this Court's conclusion that a defendant's presence was not indispensable at a view, because the view did not constitute a part of the trial proper at which evidence might be received, was expressly predicated on the general nature of the Florida statute in effect at that time, which provided merely that "the court may order a view by the jury." Section 3989, General Statutes 1906. (Emphasis supplied.) 'In the absence of legislative provisions describing the mode in which jury views are to be conducted, it is more in consonance with the theory and methods of judicial trials that the jury should base their findings solely upon sworn testimony in open court, or by depositions taken as provided by law.' Haynes v. State, supra.

It seems clear that the amended statute, section 918.05, Florida Statutes 1951, F.S.A., does not alter the rule that the view is not a part of the trial proper for the reception of evidence, since it expressly requires the trial judge to admonish the officer conducting the jury 'to permit no person to speak to or otherwise communicate with the jury, nor to do so himself, on any subject connected with the trial * * *.' However, the statute does contain a clear and explicit legislative mandate that when a view is taken 'the trial judge and defendant shall be present unless defendant absents himself without permission of court * * *.' (Emphasis supplied.) Since the latter clause of the amended statute qualifies the requirement as to the presence of the defendant at the view, it may be (although we do not here decide) that the statute does not vitiate the doctrine approved in Haynes v. State, supra, 'that whatever the nature of the rights of the defendant [to be present at a view] may be in such case, and from whatever source such rights may be derived, he may and does waive the same when the action of the court is taken and the view made on his request and without suggestion that he desires to be present at the view; and that in such case it is too late to complain after verdict.' See annotations 30 A.L.R. 1365, 90 A.L.R. 599. Underhill on Criminal Evidence, 4th ed., section 410; Bishop's New Crim.Proc., Vol. 2, section 965(3); 14 Am.Jur., Crim.Law, sections 201-202.

But over and above the question of whether or not the defendant may waive his own presence at a view, there is the larger question directly presented in the ground of appeal as to whether or not the defendant, being absent on the occasion of the view, can be held to have waived the presence of the trial judge when, as we glean from the record, the latter voluntarily absented himself from the view in the face of a statute which required his presence there.

On this question, it is held by many courts that the doctrine of waiver by failure to make timely objection cannot be applied to the absence of the judge from any stage of a criminal proceeding when under the law he is required to be present. Moore v. State, 46 Ohio App. 433, 188 N.E. 881; Tunnell v. State, 24 Okl.Cr. 176, 216 P. 951; Ellerbe v. State, 75 Miss. 522, 22 So. 950, 41 L.R.A. 569; Meredith v. People, 84 Ill. 479; Thompson v. People, 144 Ill. 378, 32 N.E. 968; People v. Shaw, Ct.App., 63 N.Y. 36; Palin v. State, 38 Neb. 862, 57 N.W. 743; State v. Carnagy, 106 Iowa 483, 76 N.W. 805; 23 C.J.S., Criminal Law, § 972, p. 302. So, failure to object to the judge's leaving the courtroom during argument to the jury has been said not to be a waiver of the accused's rights to raise and take advantage of the mistrial caused thereby. State v. Darrow, 56 N.D. 334, 217 N.W. 519.

The reason that the doctrine should not be applied in case of absence of the judge is plain: 'The presiding judge of a trial court is charged with the duty of trying the case from the opening to the close, and he ought not to abdicate his functions even for half an hour. During such absence grave errors or abuses of privilege may occur, and this court may be left to the...