Roberts v. State

• Decision Date: 11 July 1927
• Citation: 113 So. 726,94 Fla. 149
• Parties: ROBERTS v. STATE.
• Court: Florida Supreme Court

113 So. 726

94 Fla. 149

ROBERTS v. STATE.

Florida Supreme Court, Division A.

July 11, 1927

Error to Circuit Court, Sarasota County; W. T. Harrison, Judge.

Steve B. Roberts was convicted of second degree murder, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Under evidence sufficient to support conviction for first degree murder, conviction for second degree murder will not be disturbed for insufficiency of evidence. Upon the trial of an indictment for murder in the first degree, where the evidence is sufficient to support that charge, a verdict of guilty of murder in the second degree will not be disturbed on the ground that the evidence is not sufficient to support it.

Purpose of bill of exceptions is to preserve only matters in pais occurring at trial which are not matters of record. The purpose of a bill of exceptions is to preserve of record only such matters occurring at the trial which are not matters of record but are in pais.

Motion to quash indictment is part of record; ruling on motion to quash indictment is properly presented for review only by record proper; overruling motion to quash indictment for first degree murder, presented only in bill of exception will not be considered. A motion to quash an indictment constitutes part of the record, and when a ruling upon such a motion is desired to be reviewed, it is properly presented to the appellate court only by the record proper.

Averments of fact in motion are not proved by motion; in prosecution for first degree murder, overruling motion to quash panel of jurors will not be reviewed, in absence of supporting affidavits. The averments of fact in a motion are not proved by the motion. The motion is not self-supporting.

To obtain review of excluding evidence to support motion proffer thereof should be made. When a person offers to establish by witnesses the fact alleged in any ground of a motion, and the court declines to hear such evidence, if the ruling is sought to be reviewed, a proffer of the evidence sought to be introduced should be made so that the appellate court could determine its relevancy.

Question on voir dire whether juror's mind was in same state he would like juror's mind to be if he was being tried under like circumstances held improper. A question to a proposed juror on his voir dire which seeks to ascertain if the mind of the proposed juror 'was in the same state' that he would like a juror's mind to be in if he, the proposed juror, was being tried under 'like circumstances' is an improper question.

Voluntary statements by accused relating to his criminal knowledge or connections with act are admissible; in prosecution for murder, admitting testimony of defendant's voluntary statement to third person entering his room soon after shooting that he would let no one come in and rob him held proper. Voluntary statements by an accused person relating to the matter of his criminal knowledge or connections with the act are admissible in evidence.

Assignment of error including several objections to evidence and exceptions to court's rulings will fail if all objections and exceptions are not well taken. Where several objections to evidence and exceptions taken to the court's rulings are included in one assignment of error, the assignment will fail if all such objections and exceptions are not well taken.

Instruction on law if favorable to accused is not ground for reversal because it was erroneous; in prosecution for murder, giving instruction on intoxication favorable to defendant and based on evidence held not error. An instruction by the court upon the law of any phase of a case if favorable to the accused is not ground for reversal because the instruction was erroneous.

Trial judges should avoid expressing opinion on credibility of witnesses or merits of case. Trial judges should avoid expressing in their charges to the jury, or by any other means, their opinion upon the credibility of the witnesses or the merits of the case.

Silence of accused in whose presence incriminatory statement or accusation is made if he has opportunity for reply is admissible in evidence. Where an incriminatory statement or accusation is made by a person in the presence of one suspected of crime involving the latter in guilt, and he has an opportunity for a reply which under the circumstances would render a denial expedient, silence of the accused under such conditions may be submitted in evidence to establish an admission on his part.

Evidence held to support conviction of second degree murder (Rev. Gen St. 1920, § 2812). Evidence examined and found sufficient to support the verdict.

COUNSEL

Will O. Murrell, of Sarasota, for plaintiff in error.

J. B. Johnson, Atty. Gen., and Dewey A. Dye, State Atty., of Bradentown, for the State.

OPINION

ELLIS C.J.

The plaintiff in error was indicted for the murder of W. A. Stone, alleged to have been committed on December 31, 1925, in the Pasadena Hotel. Stone died about two days afterwards in the Sarasota Hospital.

The circumstances of the killing, as nearly as can be gathered from the record, were as follows:

Stone and a man named Garrick went to the Pasadena Hotel and to a room occupied by Steve B. Roberts. Soon after entering the room the defendant, plaintiff herein, shot Stone with a pistol and as he turned to leave the room shot him again with a shotgun. As a result of the wounds inflicted Stone died at the hospital where he was taken.

The state's case was supported by the testimony of Garrick, the dying declarations of Stone, and the witness Maud Roberts. The room was occupied by Roberts; he was lying on the bed when Garrick and Stone enered; his daughter, Maud Roberts, was also in the room. The fact of the shooting was clearly established. The existence of a premeditated design was easily deducible from the evidence. The motive for the shooting does not appear. There is something like a suggestion that Roberts thought Stone and Garrick were in the room to rob him. There is also some evidence to show that the motive was one of revenge for the murder some time before of a man named Monroe, whom Roberts seemed to suppose was killed by Stone. However this may be, the fact of the killing deliberately of Stone by Roberts was fully established.

The errors assigned upon which the plaintiff in error relies for a reversal of the judgment are 13 in number. Roberts was convicted of murder in the second degree. As the evidence was sufficient to sustain the charge of murder in the first degree, it is sufficient to support the verdict of murder in the second degree. See Ammons v. State, 88 Fla. 444, 102 So. 642; Mobley v. State, 41 Fla. 621, 26 So. 732; Griffin v. State, 48 Fla. 42, 37 So. 209.

The motion to quash the indictment, the overruling of which is assigned as the first error, was not presented to this court by the record proper. It is contained only in the bill of exceptions. The bill of exceptions upon proper authentication becomes part of the record. Its purpose is to preserve of record only such matters occurring at the trial which are not matters of record. The clerk is the custodian of the record, and it is his certificate which gives authenticity to the transcript of the record. A motion to quash the indictment is part of the record proper and should appear there and not in the bill of exceptions. The assignment therefore will not be considered.

The motion to quash the panel of jurors drawn on November 19th, which was a few days before the trial, was overruled. That order constitutes the basis of the second assignment of error. The motion is not evidence of the facts asserted in it. It is not self-supporting. There were no affidavits submitted in support of its grounds. See Broward v. State, 9 Fla. 422; Davis v. State, 35 Fla. 614, 17 So. 565; Smith v. State, 57 Fla. 24, 48 So. 744; Haynes v. State, 71 Fla. 585, 72 So. 180.

The defendant's counsel 'offered to introduce evidence in support of said motion,' the record states, but the court denied him 'that right.' There was no offer to show what counsel considered as evidence in support of the grounds of the motion; therefore it is impossible to say that defendant was deprived of any right. It cannot be assumed that the evidence which counsel offered was in support of the motion as his conception of what constituted such evidence might have been erroneous. Besides, there were several grounds to the motion, some of which were without any merit. Evidence in support of such grounds would have been useless.

The defendant complains that the court erred in not permitting his counsel to question a 'prospective talesman,' named F. D. Rawls, on his voir dire, as to whether his 'mind was in the same state he would want a juror's mind to be if he was defendant, being tried under like circumstances, and if accepted as a juror in this case would he give this defendant the same trial he would want to be given himself under like circumstances.'

Aside from the obvious fallacy contained in this question, the record does not disclose that Rawls did not serve. If he did serve and could have qualified under the question the defendant could not be heard to complain, and if the venireman could not have qualified under the question it would have constituted no ground for an objection to his qualifications, assuming, of course, that any normal person on trial for a crime would like to be tried by a jury favorable to him.

The state's attorney offered to show by a witness named L. D Hodges that shortly after the shooting and before any arrest of Roberts had been made that the latter remarked to Hodges as he entered Roberts' room that he would 'let no damn s--- o--- b--- come in his room and rob me.' Defendant's counsel...