Murray v. State
| Decision Date | 21 August 1889 |
| Citation | 25 Fla. 528,6 So. 498 |
| Court | Florida Supreme Court |
| Parties | MURRAY v. STATE. |
Error to criminal court, Orange county; CECIL G. BUTT, Judge.
Syllabus by the Court
1. Where there are two counts in an information, both based upon the same statute, and both relating to the same transaction and the two counts are only meant to meet the various aspects in which the evidence may present itself, it is not error in the court to refuse to compel the solicitor to elect upon which count he will proceed.
2. The criminal court records of the conviction and sentence of a party are proper evidence in a case wherein the prisoner is being tried for assisting the party to escape from jail whose trial, conviction, and sentence are shown by said records.
3. Where a party has been tried and sentenced to the state-prison, he is in the legal custody of the sheriff of the county, after such sentence, until he is transferred to the state-prison.
4. Where evidence is offered to show the confession of a party charged with crime was voluntary, and the evidence is objected to because the confession was induced through improper influences, it is error in the court to refuse to inquire into whether or not the confession was voluntarily made, and to submit such question to the jury. Such a question is to be decided by the court, and not by the jury.
5. Confessions of a party accused of crime are not admissible in evidence unless it is clearly shown that they were voluntarily made.
6. Confessions obtained through improper influences will be presumed to continue and enter into and give color to all subsequent confessions unless the contrary is clearly shown.
7. The names of all witnesses to be relied upon by the state should appear upon the back of the indictment or information, so that the accused may know by what witnesses he is to be confronted, and to enable him to prepare for his defense; but it is not error to call during the trial witnesses other than those whose names appear on the indictment or information.
COUNSEL Alex. St. Clair-Abrams, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiff in error was convicted in the county criminal court of record of Orange county for aiding a prisoner to escape and the case is before this court on writ of error.
The first error assigned is: The court erred in not requiring the county solicitor to elect on which count in the information he would try the accused.
The information is predicated upon the statute, (McClel. Dig. p 372, § 13,) which is: 'Whoever conveys into a jail or other like place of confinement any disguise, instrument, tool, weapon, or other thing adapted or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or by any means whatever aids or assists such prisoner in his endeavor to escape therefrom, whether such escape is effected or attempted or not; and whoever forcibly rescues any prisoner held in custody upon any conviction or charge of an offense,--shall be punished by imprisonment in the state penitentiary not exceeding ten years nor less than one year.'
The first count of the information charges the defendant with carrying into the jail of Orange county a certain tool, to-wit, a saw, with the intent to facilitate the escape of one Raymond, then legally confined in said jail.
The second count charges the defendant with an attempt to assist the said Raymond to escape from said jail, stating what the attempt was.
The contention is that the information charges the defendant with two separate and distinct offenses; but is this correct? Both counts refer to the same transaction, and the penalty for the violation of every offense (if more than one) contained in the section of the statute is the same, and we cannot see how the defendant could have been misled or how he could have been injured by the information containing the two counts. The pleader, by filing two counts, only did so for the purpose of meeting the different aspects of the case. Mr. Bishop, in his work on Criminal Procedure, (volume 1, § 457,) says: 'The general rule in felony is that the court will permit the prosecutor to give evidence of only one felonious transaction; but when it appears on the opening of the case, and during the trial, that there is no more than one criminal transaction involved, and the joinder of the different counts is meant only to meet the various aspects in which the evidence may present itself, the court will not restrict the prosecution to particular counts, and will suffer a general verdict to be taken on the whole.' This we understand to be the rule, and hence there was no error in the court below in refusing to force the solicitor to elect upon which count he should try the accused.
The second error assigned is: The court erred in admitting the record of the trial and conviction of John B. Raymond by the criminal court of record. There was no error in admitting said record.
The third error assigned is: The court erred in permitting J. C. Anderson to testify to his having Raymond in the jail of Orange county after his sentence to the penitentiary.
After the conviction of Raymond, he was in the custody of Anderson, waiting to be conveyed to the penitentiary; and the contention of counsel for the plaintiff in error is that after sentence it was the duty of the sheriff to convey him to the penitentiary, and that the sheriff could not legally confine Raymond in the county jail after sentence to the penitentiary, and that for that reason the plaintiff in error committed no offense in his alleged attempt to assist Raymond in escaping from the jail.
The fifth section of cahpter 3034, Laws Fla., entitled 'An act to provide for the employment of persons convicted of crime and sentenced to the state-prison, and for the custody, maintenance, and discipline of such convicts, and for other purposes,' approved March 3, 1887, provides that 'all prisoners contracted for shall be delivered to the contractor or contractors at the state-prison, or such other places as the adjutant general and contractors may agree upon.'
Under the contract entered into on the 25th day of November, 1885 between David Lang, adjutant general, for the state, and Charles K. Dutton, contractor, in pursuance of the provisions of said section of said act, it is stipulated and agreed by and between the parties to said contract 'that he, the said Charles K....
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