Morris v. State

• Court: United States State Supreme Court of Florida
• Writing for the Court: ANDREWS, C. PER CURIAM.
• Citation: 130 So. 582,100 Fla. 850
• Parties: MORRIS v. STATE.
• Decision Date: 16 October 1930

130 So. 582

100 Fla. 850

MORRIS v. STATE.

Florida Supreme Court

October 16, 1930

Commissioners' Decision.

Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

Clyde Morris was convicted of murder in the second degree, and he brings error.

Affirmed.

COUNSEL

Joseph M. Cheetham, of Miami, for plaintiff in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for thE state.

OPINION

ANDREWS C.

Plaintiff in error, Clyde Morris, was indicted, in the circuit court of Dade county, jointly with Stanford Morris, William McKenney and La Mar Penney, for murder in the first degree in the unlawful killing of George Adams at Kendall, near Miami. At a former term of said court a severance was granted as to McKenney, who was put on trial and a verdict rendered for murder in the second degree. The record does not show the disposition of the charge against Penney.

On June 17, 1929, Clyde and Stanford Morris were put on trial, which resulted in the conviction of Clyde Morris for murder in the second degree and murder in the third degree for Stanford Morris. Clyde Morris was sentenced to the state prison for a period of twenty years, after a motion for new trial was denied, and he took this writ of error.

The evidence upon the issues of the trial covers over 500 pages of the transcript. There are 112 pages covering the examination of jurors upon which no assignment of error is based and to which no reference is made in briefs. It therefore unnecessarily incumbers the record at the expense of Dade county under the order of insolvency.

The four defendants were mere youths; each being under twenty-one years of age. The undisputed evidence shows that Clyde Morris, the oldest of the four, had been engaged in delivering intoxicating liquors from near his father's house, and that about 1 o'clock on the night of the shooting all four youths occupying a Ford coupe, driven by one of them, and having with them something over two cases of liquor, passed, and stopped about three hundred feet beyond, Adams' filling station and lunch room at Kendall, on the highway just south of Miami. They were armed with at least two revolvers, and went back and called Adams, ostensibly to get some gasoline, but, according to the theory of the state, the main purpose was to 'stick him up.' At least three, if not all, the boys appeared at Adams' door which led to his bedroom on second floor, and, when he came out to the gas tank, he was seized by the boys from behind, and in the scuffle Adams was shot down from behind by one of the boys, from which wound he died at a hospital the following night. One of the defendants, Stanford Morris, received a shot, apparently from the gun of Adams, from which he had recovered at the time of his trial.

Clyde Morris and McKenney were found by the police about daylight of that morning asleep in the Ford coupe which contained the two cases of liquor. The car was bloody inside, and both occupants were somewhat under the influence of intoxicating liquors. A. revolver was taken from McKenney at the time they were arrested.

The deceased, from where he fell, called a near neighbor, Charles Russell, at his home about 150 feet away, who took him to the hospital with the assistance of Mr. Mew, another neighbor. Russell testified as to hearing pistol shots, also as to conditions and statements of deceased immediately after the shooting and on the way to the hospital. The defendants, Clyde Morris, Stanford Morris, and William McKenney, made separate statements soon after the killing which were taken down by the assistant court reporter in the presence, and at the instance of, Mr. Bing, who was deputy sheriff and special criminal investigator for Dade county assigned to the state attorney's office. These statements tended to corroborate deceased's statement. The statement of McKenney was signed and sworn to, but those of Clyde and Stanford Morris were not. The substance of these statements was denied at the trial by the same defendants. Their admission in evidence was also assigned as error.

Plaintiff in error first insists that error was committed in admitting in evidence the testimony of Dr. Elder as to the statements made by deceased about 8 o'clock of the morning on which the shooting occurred. The ball which caused Adams' death passed from the back clear through the body, severing a kidney, and he was too weak and ill to undergo an operation about an hour or two after he was shot. At 8 o'clock the following morning deceased aroused, and at that time the doctor states that he made the statement here objected to. Later in the day he again lapsed into unconsciousness, from which he never recovered, dying during the night.

The testimony of Dr. Elder indicates plainly that Adams was conscious of the fact that he was mortally wounded. He testified: 'This man knew unquestionably, that he had been mortally wounded. * * * He told me that he felt like it; that he would not last very long. He said he felt like he wasn't going to get well.'

It is not necessary that the preliminary foundation for a dying declaration should be proved by expressed utterances of decedent. Copeland v. State, 58 Fla. 26, 50 So. 621. Kirkland v. State, 93 Fla. 172, 111 So. 351. It is a mixed question of law and fact for the judge to decide, before permitting the introduction of a dying declaration, whether decedent at the time knew that his death was imminent and inevitable. Lester v. State, 37 Fla. 382, 20 So. 232; Copeland v. State, supra; Bennett v. State, 66 Fla. 369, 63 So. 842; Frier v. State, 92 Fla. 241, 109 So. 334. Whether sufficient predicate has been laid for admission of a dying declaration is for the trial court, every presumption being in favor of its correctness. Kirkland v. State, supra.

It is argued that the evidence of Dr. Elder does not show that deceased at the time of making statement was 'without hope of recovery.'

If a person 'knew, unquestionably, that he had been mortally wounded * * * would not last long,' and 'wasn't going to get well,' it is obvious that he 'was without hope of recovery,' and not that he 'merely considered himself in imminent danger.' The fact that dying declarations are made in response to questions asked the decedent is no ground for excluding them. Richard v. State, 42 Fla. 528, 29 So. 413. In fact, the statements made by deceased to Dr. Elder called no name, but referred to his assailant only as 'that same bunch'; it therefore does not tend to incriminate any particular person or persons.

In substance, deceased stated that they called him and said they wanted to get gasoline, and, after asking them several questions, he went out to deliver it, when they struck him from behind and jumped on him, and, when he tried to defend himself, they shot him. This statement, with the written statements of the three defendants, strongly supported the theory of the state as to the motive for the homicidal assault, and, even if it had not, the predicate of belief in impending death was amply laid, in view of the mortal wound and all the circumstances as to the shot striking a vital organ, the lapse into unconsciousness, and dying within a day from the time he was shot. A dying declaration is admissible, although there is other testimony touching the same matters. Ward v. State, 75 Fla. 756, 79 So. 699.

The question of the admissibility of the declaration as given by Dr. Elder is discussed above more at length and more fully, in view of the fourth and fifth assignments of error, which are based upon the admission in evidence of the testimony of Charles Russell as to similar statements made by the deceased immediately after the shooting and on the way to the hospital.

The evidence referred to in discussing the previous assignment shows that a mortal wound had been inflicted; that immediately after deceased was shot he crawled to Russell's back door through the water and 'slumped down,' and thereafter was revived by Russell; that blood was flowing freely from the wound, his shoes, and clothes; that deceased was in great agony and said: 'I think they have got me this time' (it appears that his place of business had been 'stuck up' before this); that on the way to the hospital he 'rolled down on the floor of the car, he was in such agony he could not keep still.'

In the case of Coatney v. State, 61 Fla. 19, 55 So. 285, 286, this court said:

'In a prosecution for homicide, evidence of declarations made by the deceased before his death as to facts that actually caused his subsequent death or as to circumstances that actually resulted in his subsequent death is admissible either for or against the deceased upon predicate being laid, where such declarations were made at a time when the deceased was in extremis and really believed he could not recover, and where the deceased would have been competent to testify as to such facts or circumstances had he lived.'

The testimony as to statements of deceased were confined by the court, in substance, to the act of the killing, position of persons, what was said by parties involved, what instruments were used, and in substance excluded everything except what related to the res gestae. This is the proper procedure, as announced by this court in a number of cases. Clemmons v. State, 43 Fla. 200, 30 So. 699; Malone v. State, 72 Fla. 28, 72 So. 415; Ward v. State, 75 Fla. 756, 79 So. 699; Sealey v. State, 89 Fla. 439, 105 So. 137.

No error was committed in admitting in evidence the testimony of Dr. Elder and that of Russell, and, if there was no error in admitting their testimony, there likewise was no error committed in denying the motion to strike their testimony presented by another assignment of error.

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