Newton v. State

• Decision Date: 24 April 1906
• Citation: 51 Fla. 82,41 So. 19
• Parties: NEWTON et al. v. STATE.
• Court: Florida Supreme Court

41 So. 19

51 Fla. 82

NEWTON et al. v. STATE.

Florida Supreme Court, Division B.

April 24, 1906

Error to Circuit Court, Volusia County; Minor S. Jones, Judge.

Sarah Newton and another were convicted of murder, and bring error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

An indictment for murder, in which a person is charged as principal in the second degree, though not in the form prescribed by accepted precedents, if the charge is set forth in such language and form as to enable a person of common understanding to know what was intended, and the person thus charged was not thereby prejudiced or embarrassed in his trial, and runs no risk, because thereof, of a second indictment for the same offense, is, under the operation of our curative statutes, sufficient to withstand a motion in arrest of judgment.

Where in a trial for murder, a witness testified that he had a conversation with the deceased two or three days after he was shot, and five or six days before he died, in which the deceased said to the witness: 'Oh! Mr. Cade, I am going to die. Sarah Newton shot me, and I am going to die'--to which the witness replied, 'I don't think you are going to die,' and the deceased said to him, 'Yes, I know I will,' and the deceased further said that James Newton was fixing to shoot him, and that he was watching Sarah Newton, and Sarah shot him from the side, and that Sarah shot him first, and where it also appears from the testimony of the attending physician that deceased was in a very critical condition, the statements of the deceased to the witness were properly admitted in evidence as dying declarations.

In charging a jury upon the law of murder, the separate elements essential to constitute the crime should be clearly stated to the jury, and in such manner as not to render it possible for the jury to think that any disputed fact is thereby assumed to be true.

When the evidence is such that the jury might reasonable convict the defendants of a lower degree of unlawful homicide than murder in the first degree, it is erroneous to so charge the jury as practically to restrict them to a verdict of murder in the first degree or to one of acquittal.

COUNSEL U. M. Bennett, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

HOCKER J.

On the 10th day of November, 1905, at the fall term of the circuit court of Volusia county, Sarah Newton, alias Sarah Van Dyke and James Newton, were indicted in that court for the murder of one Will Jones, the said Sarah as principal in the first degree, and the said James as principal in the second degree. After stating the assault by Sarah with a shotgun on the 29th of September, 1905, in Volusia county thereby inflicting upon Jones one mortal wound, in the usual form, it alleges: 'Of which said mortal wound, inflicted in manner and form aforesaid, the said Will Jones did languish, and languishing did live, from the 29th day of September, 1905, to the 8th day of October, 1905, on which said 8th day of October, 1905, the said Will Jones of the said mortal wound, inflicted in manner and form aforesaid, then and there died, the said James Newton being then and there feloniously present at the commission of the said felony and murder from a premeditated design to effect the death of the said Will Jones, aiding, abetting, assisting, inciting, comforting, counseling and procuring the said Sarah Newton, alias Sarah Van Dyke, unlawfully, feloniously, and from a premeditated design to effect the death of the said Will Jones, the said Will Jones to kill and murder in the manner and form and by the means aforesaid.' The indictment then concludes in the usual form charging both of the parties with the murder of Will Jones. On the same day the court appointed a member of the bar to represent the defendants, and, being arraigned, they pleaded not guilty. On the 15th of November, 1905, the defendants were put on trial, and just before the conclusion of the testimony the court removed the attorney who had been appointed to represent the defendants, for a good and sufficient reason and appointed the attorney to represent them who has brought their case on writ of error to this court. The defendants were both convicted of murder in the first degree without recommendation to mercy, and sentenced to be hung. From this sentence and judgment the writ of error was sued out.

There was no demurrer to the indictment or motion to quash the same, but after conviction a motion in arrest of judgment was made and overruled by the court, which ruling was excepted to and is the basis of one of the assignments of error. In the able brief of the counsel of the plaintiffs in error the fourth and fifth grounds of the motion in arrest are the only ones which are argued here. These grounds are: '4th. Because the said indictment contains no sufficient allegations charging the defendants Sarah Newton (alias Sarah Van Dyke) and James Newton with any offense against the statute laws of Florida, all the statements of said indictment relative to the said James Newton being merely by way of recital,' and '5th, Because it does not appear by said indictment that the defendant James Newton committed any offense within the county of Volusia and state of Florida.'

There can be no question but that the allegations of the indictment connecting James Newton with the unlawful homicide are a departure and an unnecessary one, from all the forms which at common law were regarded as essential to charge a principal in the second degree with the crime of murder. The record does not afford any apology for such a departure, and consequently for the burden thus laid upon the courts of attempting to reconcile it with the precedents and forms which are easily accessible to every prosecuting officer, and which, when followed, save all debate and all temptation to afford a defendant anything less than the most accurate statement of facts constituting the crime with which he is charged. It will be noticed that this indictment instead of using the indicative to indicate his presence at the commission of the crime, as is always usual, uses the present participle 'being,' and that although there are two dates in the indictment, the one indicating the day when the assault was committed, and the other when Jones died from the effects of the assault, when the alleged murder was consummated, yet that James Newton was connected with the alleged murder only by the phrase 'then and there.' While the former departure might not have been absolutely vicious at common law (1 Bishop's New Crim. Proc. §§ 566 and 557), the last was regarded as insufficient and repugnant as to the allegation of time. 2 Hawkins' Pleas of the Crown, c. 23, §§ 88 and 89. It is in this authority stated that when this form of indicting a principal in the second degree is used, under these circumstances,...