Murray v. State

• Decision Date: 11 July 1944
• Parties: MURRAY v. STATE.
• Court: Florida Supreme Court

18 So.2d 782

154 Fla. 683

MURRAY v. STATE.

Florida Supreme Court

July 11, 1944

Rehearing Denied Aug. 1, 1944.

Appeal from Criminal Court of Record, Monroe County; Thomas S. Caro judge.

J. F Gordon and Leonard G. Egert, both of Miami, for appellant.

J. Tom Watson, Atty. Gen., John C. Wynn, Asst. Atty. Gen., and Bourke Floyd, Sp. Asst. Atty. Gen., for appellee.

CHAPMAN, Justice.

The appellant, Joe Murray, was convicted in the Criminal Court of Record of Monroe County, Florida, for the violation of Chapter 21,974 Acts of 1943, Laws of Florida, F.S.A. § 800.04. The trial court sentenced the appellant to serve a period of ten years at hard labor in the State Prison. He perfected an appeal here. The information was filed on September 13, 1943, and alleged the commission of the crime on July 19, 1943, and the appellant was placed on trial on September 16, 1943, and the verdict of the jury was returned at 1:45 a. m., September 17 1943. Between 1:30 and 2 o'clock a. m. September 17 1943, the trial court in his sentence gave the appellant the maximum penalty provided by the Act.

The appellant was represented at the trial by J. Fritz Gordon, of the Miami bar, and William V. Albury and John G. Sawyer, of the Key West bar. The September Term of the court opened September 13, 1943, when the information was filed, and on calling the case the Key West attorneys for the appellant consented that the trial be set for Thursday a. m., September 16, 1943. Chief counsel for Murray, Mr. Gordon, was not present on the calling of the case by the trial court on Wednesday morning, and associate counsel requested a re-setting of the case until 4 o'clock p. m. which was done. The appellant was arraigned during the interim and entered a plea of not guilty, and a jury was selected and sworn to try the cause. Mr. Gordon reached Key West about 4 p. m.

Counsel for appellant moved the court to quash the information for enumerated reasons and the County Solicitor expressed a desire to amend the same if it was to the trial court agreeable. The proposed amendment of the information as suggested by counsel was by the trial court denied. Permission to withdraw the plea of not guilty previously entered and to file a motion to quash was denied. Mr. Gordon stated that he did not know the case by the trial court had been set for trial on Thursday, September 16, 1943. Associate Key West counsel admitted that they inadvertently failed to advise Mr. Gordon that the case was set for trial on September 16, 1943. The Court stated: 'I have continued the trial and have tried to be fair, but it seems that the defense is frivolous and does not care to go to trial.' Mr. Gordon: 'Does your honor mean to say I am trying to be frivolous?' By the Court: 'You had better sit down, Mr. Gordon, and we will start the trial. Call the witness.'

The taking of testimony began around 4 o'clock p. m. September 16, 1943, and continued until around 8 o'clock, when a recess for an hour or an hour and a quarter was allowed, after which the taking of testimony was resumed and continued until after midnight of September 16, 1943. Argument of counsel was then heard, the trial court instructed the jury upon the law of the case, and upon the return of the verdict by the jury the appellant, between 1 and 2 o'clock a. m. was by the trial court sentenced to the State Prison for ten years. Motion for a new trial was made by counsel for appellant and denied by the trial court.

Appearing in the record is a suggestion of disqualification of the trial court because of alleged prejudice which it was contended militated against a fair and impartial trial. The suggestion of disqualification is in conformity with the provisions of Section 38.10, Fla.Stats.1941, F.S.A., and the decisions of this Court thereunder. We have carefully considered the suggestion of disqualification, and affidavits in support thereof, and the order of the trial court overruling and denying the same. It appears from the record that when the suggestion of disqualification was presented by counsel on September 17, 1943, the trial court took the same under consideration and entered an order of denial on September 21, 1943.

The prosecution offered and interrogated as an important State witness James Earl Walker, a boy 9 1/2 years of age. He was closely examined by the County Solicitor and gave very damaging testimony against the appellant. This witness was being cross-examined by appellant's counsel, when the trial court remarked: 'You are going over and over that too much, Mr. Gordon. I don't think you are trying to be disrespectful to the child, but you have made that point clear four or five times I can remember.'

When a six year old girl was being examined as a witness for the State, attorney Sawyer was talking to attorney Albury and uttered a sound something like a laugh, and the following occurred: By Judge Caro: 'You just shut up, Mr. Sawyer. I don't want that any more.' By. Mr. Sawyer: 'Your Honor, I was just talking to Mr. Albury'. By Judge Caro: 'I saw what you did Mr. Sawyer, and you just sit right down. We are talking to this 6 year old child and she is half scared to death, and I don't want that to happen again.'

The defendant offered evidence in support of an alibi when objections to the admissibility were made by the County Solicitor. The objections were overruled--when the court said: 'The jury may consider the testimony as given. You are instructed that the testimony must be positive to prove an alibi, however, we are going to let the testimony stand for what it is worth.'

The record discloses the following:

'By the Court:--I am going to ask that you make your arguments to the jury as short as possible, as we would like to get finished with this case tonight, if possible. By that I don't mean you should not take sufficient time to argue your case. You should take all the time you actually need, but we want to finish as soon as possible.

'Note:--During his closing argument to the jury, County Solicitor Clare stated to the jury, 'Gentlemen, I take a solemn oath I believe this defendant is guilty, and I know that you gentlemen will agree with me that he is guilty of the offense charged.' Whereupon Mr. Gordon, Chief Defense Counsel addressed...