North v. State

Decision Date21 October 1952
PartiesNORTH v. STATE.
CourtFlorida Supreme Court

John R. Parkhill and C. J. Hardee, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

MATHEWS, Justice.

This case results from the death of Mrs. Betty Albritton at her farmhouse in Polk County under mysterious circumstances. Only the appellant and Mrs. Albritton were present at the time of her death. The appellant was indicted by a Grand Jury of Polk County, Florida, for murder in the first degree. He was tried in the Circuit Court of that county and the jury returned a verdict finding him guilty of murder in the first degree without any recommendation for mercy.

On the second day of the trial the appellant filed motion for continuance which was denied. This motion and the order thereon will be discussed later in this opinion.

After the verdict, the appellant filed a motion for new trial alleging certain facts which will be more fully stated hereafter. The State filed responses to such motion. The trial Judge proceeded to take testimony on the issues raised by the motion for new trial and the responses filed by the State, after which he entered an order denying the motion for a new trial. The Court then adjudged the appellant guilty of murder in the first degree and sentenced him to death in the electric chair. This appeal is from the judgment and sentence.

The appellant has propounded eight questions on the appeal. We shall not consider the questions as they are numbered in the briefs but shall consider them in what we believe to be a more logical order.

The first question for consideration is whether the trial court committed prejudicial error in excusing prospective jurors in advance of the trial from responding to their summons, where such action on the part of the court took place without the knowledge and consent of the defendant and his counsel and in their absence.

In respect to this question, it appears from the record that a jury venire of 150 names was drawn from the lot. Under the law as it existed at the time of this trial, Section 40.36, F.S.A., a regular venire consisted of such number of persons as the Judge should deem necessary or expedient for a jury venire. The appellant does not disclose whether this was a special or a regular venire, and hence we will assume that it was a regular venire.

The record shows that before the prospective jurors were examined on their voir dire, the attorney for the appellant announced to the Court that he would like to make a motion for the record; however, the record fails to show that he ever made any such motion. He did make the statement to the Court to the effect that the jury panel of 150 names had been reduced to 43, that many jurors had been excused in open court and that the Judge had excused some jurors before the case was called for trial in the absence of the defendant and without notice to him and without his consent and without requiring their excuses to be made under oath. Because of the gravity of the issues involved we will treat these proceedings as being an objection timely made to the action of the Court in excusing the jurors. In connection with this objection the trial Judge stated:

'The Court will say this: That in numbers of cases the party is absolutely unable to come to court to give his excuse. He would have to be brought in by ambulance and on a stretcher. There are some cases of that kind. The Court has always excused jurors who would give an absolutely valid excuse as to why he should not be required to serve just the same as he does in open court, and the Court will follow this practice unless and until it is held that it is error.'

The trial Judge has a broad discretion in excusing prospective jurors for reasons personal to such persons. A defendant in a criminal case is not entitled to any particular juror or jury. Mathis v. State, 45 Fla. 46, 34 So. 287; Davis & Youngue v. State, 90 Fla. 322, 105 So. 845; 14 Am.Jur. 902, Criminal Law, Sec. 194; Maxwell v. State, 89 Ala. 150, 7 So. 824; Parker v. State, 201 Miss. 579, 29 So.2d 910.

The appellant places great reliance upon Sec. 914.01(3), F.S.A., which provides that in all prosecutions for a felony, the defendant shall be present:

'At the calling, examination, challenging, impaneling and swearing of the jury.'

Excusing jurors is no part of the calling, examination, challenging, impaneling or swearing of the jury; therefore, it is not necessary that the defendant be present when prospective jurors are excused by the trial Judge.

Appellant relies upon the case of Adams v. State, 28 Fla. 511, 10 So. 106, 117, where this Court said:

'He has the right to be present and to hear questions of law as well as questions of fact discussed, and in fact no steps can be taken in the case in his absence. The court must see in capital cases that the accused is present before any proceedings are taken in the case.'

The record shows that after court was opened the appellant was present at all times to hear questions of law as well as quetions of fact discussed and it is not made to appear that any step was taken in the case in the absence of the defendant. The case of Adams v. State, supra, is not susceptible of the construction placed upon it by the appellant. The language used by the Court in that opinion that 'the court must see in capital cases that the accused is present before any proceedings are taken in the case' means in, or during, the trial of the case, and is not susceptible to a construction that the accused must be present when jurors' names are drawn from the box, or when the sheriff serves the prospective jurors, or when the trial Judge in the exercise of a broad and sound discretion excuses a juror for good and sufficient reasons determined by the trial Judge.

We hold that the appellant was not prejudiced by the trial Judge excusing jurors in his absence and the same did not constitute error.

The second question: Did the trial court commit prejudicial error in denying defendant's motion for a continuance and not granting, sua sponte, a change of venue, particularly, when the Tampa Morning Tribune, a newspaper that was available to prospective jurors, published a front page article on the morning of the second day of the trial proceedings, in which it falsely stated that the defendant was charged with poisoning the deceased and that the defendant had killed his first wife with a pump gun and was then under investigation for such homicide?

It appears from the record that on September 4, 1951 the examination of the jurors on their voir dire began and eleven jurors had been tentatively selected before the recess of the Court for the night. On the morning of September 5, 1951, the appellant filed a motion for a continuance. This motion was based upon an article which appeared in the Tampa Tribune on September 5, 1951, which, according to the motion, contained untrue and inflamatory statements about the appellant and about the case. The motion is lengthy and the article appearing in the Tampa Tribune on the date in question appears in the record. No purpose could be served by copying the same in this opinion.

The trial Judge made the following order on the motion for a continuance:

'Upon the said motion presented at this time for a continuance of this case until the next term of court on account of the fact of an article carried by the Tampa Tribune in the issue of September 5, 1951, the Court has considered said motion and has considered the facts appearing to the Court from said motion and from the trial of this case up to this time.

'The day was spent yesterday, September 4th, in qualifying and tentatively impaneling the jurors for the trial of the case with the result that at the close of the day eleven jurors had been tentatively placed in the box but the panel, of course, has not been closed and this motion is presented at the beginning of the trial on September 5th.

'At this time and upon consideration of said motion when it does not appear whether or not any of the prospective jurors or jurors tentatively in the box have read the said issue of the Tribune on September 5th, this date, and when the panel is still open for re-examination of each and every individual juror tentatively seated in the box at this time as well as for all prospective jurors summoned and subject to examination on voir dire as to their qualifications to serve in this case the Court feels that nothing would be gained by continuing the case to another day. Everything that has happened in this case at this time might happen just as well immediately before the convening of any jury at any time to try a case of this kind and if newspaper articles published with regard to an approaching trial, or a trial in progress even, will result in each such case being continued the courts will be greatly handicapped in ever completing trials of important cases.

'In this case the Court will be extremely careful to extend every degree of the greatest fairness to this defendant in allowing counsel for the defandant to question every juror tentatively in the box as to, first, whether or not such juror has read the article of September 5th in the Tampa Tribune and, after that, if it appears that any juror does not qualify to the satisfaction of counsel for defendant with regard to any influence or any inerasable impression upon such juror made by this article of the Tribune, the Court will excuse such juror for cause from sitting in this case. Every juror tentatively in the box might possibly be excused for cause if it is shown that because of this article he might be influenced to the very least degree in making or bringing in a verdict in the case. The motion for continuance is denied.'

The motion for a continuance did not charge that the newspaper article had been read by any of the eleven jurors tentatively selected or...

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