Roberson v. State

• Decision Date: 24 April 1900
• Citation: 28 So. 424,42 Fla. 223
• Parties: ROBERSON v. STATE.
• Court: Florida Supreme Court

28 So. 424

42 Fla. 223

ROBERSON v. STATE.

Florida Supreme Court

April 24, 1900

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Frank Roberson was convicted of murder, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. When an application for a change of venue, based upon the ground of prejudice against the accused in the county where the trial is had, is supported only by the affidavit of the accused, the refusal of the trial court to grant it will not be reversed, in the absence of any showing that the decision was not based upon the insufficiency of the proof of the facts alleged in the affidavit, and it does not appear that the accused was prevented from getting corroborative evidence by hostile public sentiment.

2. A motion in arrest of judgment on the ground of a defect in the indictment should be exhibited in the record proper, and not in the bill of exceptions.

3. An indictment alleging the infliction of a mortal wound upon the body of the deceased is sufficient, without stating upon what particular part of the body the wound was inflicted.

4. The court instructed the jury that 'sheriffs, deputy sheriffs, and constables are not only authorized to arrest public offenders without warrant, but are required to do so for all offenses committed in the presence of an officer.' Held to be erroneous, as not correctly stating the law on the subject.

5. The court refused an instruction for the defendant to the effect that a sheriff and his deputies have no right to make an arrest of any person without lawful warrant, except the person has committed a felony, or is engaged at the time in a riot or unlawful assembly, or is about to commit a felony. Held, that the refusal was correct, because of the failure of the instruction to include the idea that the officer may arrest without warrant for any misdemeanor tending to a breach of the peace, when committed in view of the officer making the arrest.

6. When a general exception is taken to the refusal of the court to give several charges asserting separate distinct propositions of law, and any one of the charges is wrong, the exception will be disallowed.

COUNSEL

T. A. & B. B. MacDonell, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

MABRY J.

The plaintiff in error was convicted of the murder of Charles M Sadler, and sued out writ of error from the sentence of the court.

The ruling of the court denying an application for a change of venue is assigned as error. This application was presented by a petition signed by the accused, and stating that he feared he could not obtain a fair and impartial trial in the county on account of the inhabitants therein being prejudiced against him, and certain facts are stated upon which such fears were based. It is stated that the day after the killing of Sadler and the wounding of another, who subsequently died the newspapers in Jacksonville, having a large circulation throughout the county, published what were alleged as the facts connecting petitioner with the killing and wounding and that day after day thereafter such publications continued, and so prejudiced the inhabitants of the county that a fair trial could not be had. The petition further states that petitioner's reasons for such belief were based upon expressions of many prominent citizens published in an issue of a named paper, and the alleged expressions of four persons are set out in the petition. It is also stated that a page of the paper published on a given date was filed with, and prayed to be taken as a part of, the petition; and the comment of the paper on the expression of citizens, as given in the petition, is as follows, viz.: 'It will thus be seen that the general opinion prevails all over the city that a speedy trial of the murderers of Deputy Sheriff Sadler would result in much good to the community. The indications are that ninety per cent. of the people favor such action on the part of Judge Call. This district has a circuit judge whose record is a most enviable one, and, when Judge Call sees that the public opinion here wants a special term of court, he will undoubtedly order it called, and a speedy but fair trial granted to these murderers of the faithful officer of the law who, without any excuse whatever, was slain at Pablo on Monday evening, while discharging his duties.' The expression of opinion by the four persons, as shown by the petition, was in reference to the holding of a special term of court, and language was used in said expressions that the court should be held to try the murderers of the deputy sheriff who had been killed; and in one, 'The sooner they hang these Roberson negroes, the better for the community.' The petition is supported only by the affidavit of the accused, and in the bill of exceptions there is no copy of the paper containing the expression of opinion in reference to holding the special term of court. In the record proper, the petition for change of venue is copied, and under a note of the clerk, that what followed was a copy of the paper of the date given, is filed a part of a paper purporting to give the expression of opinion of citizens of Jacksonville in reference to holding a special term of court for the purpose of trying the parties who killed the deputy sheriffs. The rule long since established in this court is that, when the application for a change of venue on the ground insisted on in the present case is supported only by the affidavit of the accused, the refusal of the court to grant it will not be reversed, in the absence of anything to show that the decision of the court was not based upon the insufficiency of the proof of the facts alleged in the affidavit, and also that the accused was not prevented from getting corroborative evidence by hostile public sentiment. Adams v. State, 28 Fla. 511, 10 So. 106; Shiver v. State, 41 Fla. ----, 27 So. 36. Under the rule stated, this court is not authorized to interfere with the discretion of the circuit judge in refusing to grant the application for a change of venue in this case. If we examine the paper as a part of the petition, a different result would not follow. The expressed views of 50 people in the city of Jacksonville in favor of a special term of court to try the persons charged with killing two deputy sheriffs, and some 6 of this number referring to the accused as being a murderer, would not of itself show that the inhabitants of Duval county were so prejudiced against him as to render it improbable that a fair and impartial trial could be had.

Another error assigned and insisted on is that the court erred in denying the motion in arrest of judgment on the ground that the indictment fails to show upon what part of the body of the deceased the mortal wound was inflicted. The bill of exceptions recites that such motion was made and overruled but the record proper is silent as to such motion. As the motion in arrest of judgment is based upon an...