Roberts v. State

• Decision Date: 01 August 1916
• Citation: 72 Fla. 132,72 So. 649
• Parties: ROBERTS et al. v. STATE.
• Court: Florida Supreme Court

72 So. 649

72 Fla. 132

ROBERTS et al. v. STATE.

Florida Supreme Court

August 1, 1916

Error to Circuit Court, Santa Rosa County; A. G. Campbell, Judge.

Jim Roberts and others were convicted of murder, and bring error. Affirmed.

Shackleford J., dissenting.

Syllabus by the Court

SYLLABUS

When the voir dire examination discloses that an impartial jury was readily selected from a distant portion of the county there is no error in refusing a change of venue.

The trial of a homicide one month after its commission did not under the circumstances, show undue haste.

Under proof of a conspiracy to commit murder, the court may instruct that it is immaterial which one of the conspirators fired the fatal shot, and that a doubt as to that identity would not destroy the state's case.

The court should not instruct upon the credibility of a particular witness, not an accomplice.

While it is the better rule to instruct, if requested by the defendant, that 'no presumption of guilt arises from the failure of the defendant to take the stand and testify in his own behalf,' yet other charges sufficiently cured the omission.

The evidence supports the verdict.

COUNSEL Clark & Magaha, of Milton, for plaintiffs in error.

T. F West, Atty. Gen., and Glenn Terrell, Asst. Atty. Gen., for the State.

OPINION

COCKRELL J.

Death sentences were pronounced against these brother for the murder of one Emily Wyman.

Motions for continuance and for a change of venue, based upon an asserted aroused public excitement, were interposed and denied.

The murder was committed June 15, 1915; these men were arrested on the 19th; counsel were retained by them on the 21st, who were notified June 26th that a special term would be held on July 5, to investigate the crime. The term was called; the indictment found July 12th; the defendant were arraigned, and pleaded and the case set for July 15th. The jury was selected with reasonable promptness, the voir dire disclosing that the talesmen came from the other side of the county, distant 30 or 40 miles from the scene of the crime, and possessed only a moderate interest in the case as an item of news. The examination negatived the suggestion of an inflamed public opinion.

It is true that these defendants were removed to a neighboring county by the sheriff, but there is nothing to indicate that this action on the part of the sheriff was occasioned by other than temporary causes that speedily ceased.

Though the time intervening the arrest and the trial was less than usual, we cannot say that it was not sufficient to enable these defendants to prepare their defense. Judging from the vigor of the cross-examination of the state's witness and the number of witnesses appearing for the defendant, their attorneys had both the time and the incentive to give the state a vigorous fight.

These defendants were indicted jointly with John Barbaree and Elder Mitchell, as to whom there was a severance. The court charged to the effect that these defendants could be convicted if present aiding, abetting, and assisting, even though the actual shooting was done by Barbaree or Mitchell. There is no criticism of the charge in the abstract, but it is urged that there is no proof that Barbaree or Mitchell did the shooting. There was testimony that Barbaree took Mitchell's gun and went towards Wyman's house with two of the Robertses just before the shooting took place, together with proof of a conspiracy among all five to commit the murder. The main purpose of the charge was to advise the jury that it was immaterial which one of the conspirators actually fired the fatal shot, and that a doubt as to that identity would not destroy the state's case.

The court refused to instruct as follows:

'The court especially instructs you that, in considering any testimony that may be before you from any person testifying as to any alleged confession, either oral or written, obtained by him from any of the defendants, the defendants not suspecting his object, and while such person was feigning friendship and pretending to assist in the defense of such defendants, you should exercise greater care than in the case of witnesses wholly disinterested.'

In Holland v. State, 39 Fla. 178, 22 So. 298, we decided that the court determines the admissibility, and the jury the credibility, of confessions, and that the court should not shift its responsibility upon the jury. The witness who testified as to the confessions, and at whom this instruction was aimed, was not an accomplice, but...