Pope v. State

• Decision Date: 16 October 1922
• Citation: Pope v. State, 84 Fla. 428, 94 So. 865 (Fla. 1922)
• Parties: POPE v. STATE.
• Court: Florida Supreme Court

94 So. 865

84 Fla. 428

POPE v. STATE.

Florida Supreme Court

October 16, 1922

Rehearing Denied Jan. 9, 1923.

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

John H Pope was convicted of murder in the first degree, and he brings error.

Affirmed.

Browne C.J., dissenting.

Syllabus by the Court

SYLLABUS

Where court allowed ample time for concerting defense before and after trial, denial of continuance on ground of want of preparation not disturbed. Where a continuance of a cause on the ground of want of preparation for the trial of the defendant is denied, the appellate court will not disturb the ruling, where it appears that the trial judge allowed ample time for concerting the defense before and after the actual trial was begun.

Denial of continuance, where jury obtained before accused exhausted peremptory challenges on ground of public prejudice, will not be disturbed. Where the record of the proceedings show a fair and orderly trial, and that a jury was obtained before the defendant exhausted his peremptory challenges, a denial of a continuance on the ground of public prejudice against the defendant because of the charge on which he was indicted will not be disturbed by the appellate court.

Where one of two judges of circuit court of county disqualified for prejudice, remaining judge may preside, though he assumed jurisdiction before order designating him was executed. Where one of the two judges of the circuit court for Duval is during the preliminary stages of a trial, rendered individually disqualified under the statute by the required allegations of prejudice, the other judge of the circuit court in and for Duval county may proceed with the trial under an executive order designating him to preside at the trial of the case, even though the order which had been duly executed had not in fact reached the judge before he assumed jurisdiction and proceeded with the trial.

Examination of jurors on voir dire not strictly confined to statute, but should be so conducted as to secure an impartial jury. The examination of jurors on the voir dire in criminal trials is not to be confined strictly to the questions formulated in the statute, but should be so varied and elaborated as the circumstances surrounding the jurors under examination in relation to the case on trial would seem to require in order to obtain a fair and impartial jury, whose minds are free of all interest, bias, or prejudice.

Relevant hypothetical questions allowed in discretion of trial court to veniremen on voir dire to determine whether cause or peremptory challenges proper. Hypothetical questions, having correct reference to the law of the case, that aid in determining whether challenges for cause or peremptory are proper, may, in the sound and reasonable discretion of the trial court, be propounded to veniremen on voir dire examination.

Hypothetical question on voir dire as to conscientious scruples of enforcing law of case held proper. In a prosecution for a capital offense the following question was propounded to the jurors on voir dire: 'In the event you are taken and accepted as a juror in this case, and the court instructs you that, where several persons combine together to commit an unlawful act each is criminally responsible for the act of his associates committed in the furtherance or prosecution of the common design, and if several persons combine to do an unlawful act, and in the prosecution of the common object a culpable homicide results, all are alike criminally responsible for the probable consequences that may arise from the perpetration of the unlawful act they set out to accomplish, the immediate injury from which death ensues is considered as proceeding from all who are present and abetting the injury done, and the actual perpetrator is considered as the agent of his associates, his act is their act, as well as their own, and all are equally criminal: Would you render a verdict of guilty in this case, which would carry with it the death penalty, if you believed from the evidence in this case, to the exclusion of and beyond every reasonable doubt, that the defendant John H. Pope had combined with one Frank Rawlins, the codefendant in this case, to commit a robbery, and that in the prosecution of that robbery a culpable homicide occurred, and that Mr. Pope was either actually or constructively present, aiding and abetting in the commission of that homicide?' Held, no error. The question considered as an entirety was designed to ascertain if the veniremen had conscientious scruples against enforcing the law stated in the question, which rule of law had been announced by the trial judge as being applicable to the case then being tried under the indictment as framed.

When several persons combine to commit unlawful act, each criminally responsible for acts of associates; where several persons combine to do an unlawful act, the prosecution of which results in homicide, all are criminally responsible; actual perpetrator is considered as agent of those aiding and abetting in commission of unlawful act. When several persons combine together to commit an unlawful act, each is criminally responsible for the acts of his associates committed in furtherance or prosecution of the common design; and if several persons combine to do an unlawful act, and in the prosecution of the common object a culpable homicide results, all are alike criminally responsible for the probable consequences that may arise from the perpetration of the unlawful act they set out to accomplish. The immediate injury from which death ensues is considered as proceeding from all who are present and abetting the injury done, and the actual perpetrator is considered as the agent of his associates. His act is their act, as well as his own, and all are equally criminal.

Indictment charging murder supported by proof that homicide committed in perpetration of attempted statutory crimes. In view of the statutory definition of murder in the first degree, when an indictment charges murder to have been committed 'from a premeditated design to effect the death of the person killed or any human being,' there may be a conviction of murder in the first degree upon proof that the homicide was committed in the perpetration of, or attempt to perpetrate, any of the felonies named in the statute' defining murder in the first degree; i. e. 'arson, rape, robbery, or burglary.' Such an indictment sufficiently states the nature and cause of the accusation.

Principal in first degree and principal in second degree both principals. A principal in the first degree and a principal in the second degree are both principals, and are punishable alike. The degrees are designed merely to indicate that one actually committed the felonious act, and that the other was present (actually or constructively) aiding and abetting the felonious act. Both are equally guilty; and it is not material which one is alleged to have actually committed the felonious act, if it is duly proven that one committed the act, and that the other was present and aided and abetted the alleged felony.

Not necessary to show premeditation of principal of murder in the first degree. In a prosecution for murder in the first degree of one who is being tried as a principal in the first degree and as principal in the second degree by being present aiding and abetting a murder perpetrated in committing a robbery, it is not necessary to prove that either of the principals premeditated the murder that was committed by the principal felon in perpetrating the robbery.

Sufficient if shown that principal constructively present under previous understanding. While a principal in a murder trial must either have actually committed the felonious act or else have been present aiding and abetting his partner in the crime, the presence of the aider and abetter need not have been actual, but it is sufficient if he was constructively present, provided the aider, pursuant to a previous understanding, is sufficiently near and so situated as to abet or encourage, or to render assistance to, the actual perpetrator in committing the felonious act or in escaping after its commission.

Evidence held to sustain conviction of murder in first degree. The judgment of conviction accords with the verdict, which has ample support in the evidence adduced. No material or harmful errors appear in the record.

COUNSEL

Edgar W. Waybright, of Jacksonville, for plaintiff in error.

Rivers Buford, Atty. Gen., J. B. Gaines, Asst. Atty. Gen., and Frank Wideman, State's Atty., and Wm. A. Wallowes, Jr., both of Jacksonville, for the State.

OPINION

WHITFIELD J.

The indictment herein contained three counts. The third count was eliminated by the court at the instance of the state, leaving the first and second counts, on which the defendant John H. Pope was tried as follows:

'In the name and by the authority of the state of Florida:

'The grand jurors of the state of Florida, impaneled and sworn to inquire and true presentment make in and for the county of Duval, upon their oath do present that Frank Rawlins and John H. Pope, late of the county of Duval and state of Florida, on the 4th day of September, in the year of our Lord 1921, in the county and state aforesaid, feloniously, willfully and of their malice aforethought, and from a premeditated design to effect the death of one George H. Hickman, in and upon the said George H. Hickman an assault did make, and that the said Frank Rawlins and John H. Pope, a certain pistol then and there being charged with gunpowder and divers metal bullets, which they, the said Frank Rawlins and John H. Pope, in their hands then and there had and held against, at, and upon the said George H. Hickman,

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