Nelson v. State
| Citation | 148 Fla. 338,4 So.2d 375 |
| Parties | NELSON v. STATE. |
| Decision Date | 24 October 1941 |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Volusia County; H. B Frederick, judge.
M. S McGregor, of DeLand, for appellant.
J. Tom. Watson, Atty. Gen., Joseph E. Gillen, Asst. Atty. Gen., and Woodrow M. Melvin, Sp. Asst. Atty. Gen., for appellee.
The appellant, Ben Nelson, was indicted for murder in the first degree by a grand jury of Volusia County, Florida, for the murder of Leroy Heath on August 17, 1940. He was adjudged insolvent placed upon trial and convicted of the crime of manslaughter and was by the trial court sentenced to serve a period of ten years in the State Prison at hard labor. From this judgment of conviction in the Circuit Court of Volusia County an appeal has been perfected to this Court and several reasons urged for a reversal thereof.
On November 5 1940, counsel for appellant filed a motion to require the State of Florida to furnish to him the names of the State's witnesses, as provided for by Section 129 of the Criminal Code, Acts 1939, c. 19554. Court convened on November 15, 1940, and a jury was agreed upon and duly sworn, when counsel for the appellant moved the court for an order permitting or allowing him the privilege of a conference with certain named State's witnesses, and it is assumed that the conference was desired prior to the time that the witnesses were called to the stand. It will be observed that the indictment was returned by the grand jury on October 23, 1940, the written motion filed with the Clerk on November 5, 1940, and we glean from the record that the motion was never presented to the trial court or an opportunity given him to rule upon the same, but after the jury was sworn to try the issues and the court was actually engaged in the trial and prior to the taking of any testimony, counsel for defendant moved the court for an order allowing a conference with State witnesses, Lila Heath, Joe Graham, Deputy Sheriff McBride, and Mr. Thigpen.
The trial court did not deny the privilege of a conference, but in the exercise of his judicial discretion, it was his conclusion that the conference should be deferred until the conclusion of the State's case in chief. Section 129 of the Criminal Code makes it unnecessary to write or endorse on the back of any indictment or information the names of the State's witnesses, but the court, on motion of counsel for defendant, can or may enter an order requiring the State Attorney to supply or furnish the names of the State's witnesses. It is contemplated that counsel for a defendant shall be diligent in the presentation of such motions and obtaining an order thereon. If the motion had been presented to the trial court prior to the 15th of November, 1940, at the time the court convened, an order no doubt would have been entered granting the motion. Counsel had the names of Lila Heath, Joe Graham, McBride and, Thigpen, some of the State's witnesses, immediately after the jury was accepted and sworn. It is not necessary for a disposition of this appeal for us to decide whether or not counsel for the defendant is entitled to a conference with the State witnesses under the provisions of Section 129 of the Criminal Code, when it has not been made to appear that the trial court abused its discretion.
The jury, having considered its verdict for a period of more than one hour, returned to the court room and informed the court that they were unable to agree upon a verdict. Nine of the jurors on being polled stated that it was impossible to agree upon a verdict and three of the jurors advised the court that there was possibility of reaching a verdict. The court instructed and jury viz: 'Now, gentlemen, the court charges you further, the jurors are admonished that there should be no mistrial in this case if it is possible for the jury to agree upon a verdict, and if they can do so without violating their conscientious convictions, based upon the evidence, the jury should, therefore, lay aside pride of opinion and judgment, examine all differences of opinion that there may be among them in a spirit of fairness and candor and reason together and talk over such differences and harmonize them, if this is possible, so that this case may be disposed of.'
It is contended that the instruction as to the rendition of a verdict given by the court was prejudicial to the defendant and it is contended that nine of the jurors surrendered their conscientious convictions, based upon the evidence, because within a few minutes thereafter the challenged verdict was agreed upon and the jury returned into court. It appears that the instruction is fair, just and reflected a clear intention on the part of ...
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...circumstances in which the reading of testimony may be employed. See LaMonte v. State, 145 So.2d 889 (Fla.App., 1962); Nelson v. State, 148 Fla. 338, 4 So.2d 375 (1941). It is usually held, however, that restricting the repetition of evidence to that requested by the jury is not prejudicial......
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