Rowe v. State

Decision Date10 January 1924
Citation98 So. 613,87 Fla. 17
PartiesROWE et al. v. STATE.
CourtFlorida Supreme Court

In Banc.

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

Allen Rowe and another were convicted of murder in the first degree, and they bring error.

Reversed and a new trial granted.

(Syllabus by the Court.)


Frank D. Brennan, of Jacksonville, and Frank D Upchurch, of Fernandina, for plaintiffs in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.



Allen Rowe and William Rowe, jointly indicted, were convicted of murder in the first degree.

As the judgment must be reversed on other grounds, assignments of error relating to the qualifications of jurors, the appointment of bailiffs for the jury, and the refusal to permit two witnesses to testify in surrebuttal need not be decided, as in all probability these questions will not arise in another trial of this cause.

On his direct examination Hamp Thomas, a witness for the state, testified that the shooting occurred about 375 yards from his house at 2 o'clock in the afternoon; that he heard 18 or 20 gunshots, and did not go to the scene of the shooting until about 10 o'clock that night. The state sought to elicit from him his reasons for not going to the scene of the shooting sooner. This line of testimony was objected to by the defendants, and the objections overruled.

We find no error here. The questions did not in themselves show that the state was seeking to elicit improper testimony, nor were the answers improper or harmful.

We do not regard as well taken the assignments based upon the ruling of the court as to the competency of the witness Leonard Wingate.

When this witness was called, the court announced:

'Having examined this witness at a hearing before me, sitting in chambers, and the witness having also been examined by the county judge, and both the county judge and the judge of the circuit court having reached the conclusion that he is competent to testify, the court will make no further examination at this time as to his competency to testify. The hearing referred to by the court is the hearing on petition to admit to bail, held in Jacksonville, Fla., on September 26th, and days following, 1922.'

When the court made its ruling the defendant did not ask to be allowed to exercise his right to examine the proffered witness in open court.

This court has laid down these rules governing the admission of the testimony of a person of tender years:

'Whether an infant of tender years has sufficient mental capacity and sense of moral obligation to be competent as a witness is a question for the discretion of the trial judge, and his ruling in that regard will not be disturbed by an appellate court, except in case of a minifest abuse of discretion or where the witness is admitted or rejected upon an erroneous view of a legal principle.'

'It is the duty of the trial court, where an infant of tender years is offered as a witness, especially in a criminal case, to examine him and ascertain whether he has sufficient intelligence and understanding of the nature and obligation of an oath to be a competent witness, and such investigation should be carried far enough to make the infant's competency apparent.' Clinton v. State, 53 Fla. 98, 43 So. 312, 12 Ann. Cas. 150.

We do not find that there was any 'manifest abuse of the discretion of the court' in his ruling that the witness was competent, or that 'the witness was admitted upon an erroneous view of a legal principle.'

It is contended by the plaintiffs in error that, owing to certain occurrences in connection with and inconsistencies in the testimony of Leonard Wingate, it was not worthy of credence, and, there being no other witness to the killing, without his testimony there was nothing to support the verdict of guilty.

It appears that on the night after the homicide the boy was interrogated by County Judge Stewart, and, when asked if he knew who had killed his grandfather and father, replied 'he did not;' that it was 'two long slender fellows with sharp noses;' and then, without being asked about the Rowes, and their names not being mentioned, he voluntarily said:

'It wasn't none of the Rowe boys, I know, because I know them as far as I can see them walk.'

In considering this boy's testimony, the jury no doubt took into consideration the revolting circumstances of the homicide, and their effect upon the boy's mind when he was interrogated a short time thereafter.

He was in the automobile with his father and grandfather when they were killed. He saw two men emerge from the side of the road, and saw them literally tear to pieces the bodies of his father and grandfather, with shots from guns and rifles; and he himself had been wounded, and pulled out of the car by the hair and told to 'get away.'

These circumstances were sufficient to fill him with fear and dread of the perpetrators, and imbue him with the thought that, if he told on them, a like fate would befall him. He knew both men; he recognized them as the perpetrators of the crime, and, in his dread lest they reap vengeance on him if he told on them, he sought to shield them. His voluntarily disclaiming that the Rowes were the perpetrators of the crime, when no one accused them, and their names had not even been mentioned or suggested to him, is corroborative of his subsequent testimony implicating them, rather than a contradiction.

There were some discrepancies in his testimony, but the jury evidently did not regard them as sufficiently serious to warrant them in rejecting his account of the killing, and we cannot say that they were wrong.

The assignments relating to the conduct of the state attorney and the assistant state attorney in their argument to the jury present such palpable violations of the rights of the defendants to a fair and impartial trial, and the rights guaranteed them under the Constitution and the statutes of Florida, that the judgment must be reversed.

Section 6080, Revised General Statutes of Florida 1920, provides:

'No accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf.'

In his opening address the assistant state attorney, Mr. McNeill, speaking of the homicide, said:

'There being nothing to deny it, not even the statement of the defendants themselves.'

Upon objection the court said:

'Gentlemen of the jury, you will not regard that portion of the argument in reference to the statements of the defendants themselves. Of course, Mr. McNeill, you realize you cannot comment on the failure of the defendants to testify.'

Whereupon Mr. McNeill replied:

'Oh, yes. I had no intention in the world of commenting on that.'

It has been held in some states that comments by counsel for the state upon the failure of a prisoner to testify are in violation of his constitutional rights, as well as a violation of statutes similar to ours.

In discussing such a statute, the Court of Appeals of New York State said:

'If, with this statute in force, the fact that he is not sworn can be used against him, and suspicion be made to assume the form and have the force of evidence, and circumstances, however slightly tending to prove guilt, be made conclusive evidence of the fact, then the individual is morally coerced, although not actually compelled to be a witness against himself. The Constitution, which protects a party accused of crime from being a witness against himself, will be practically abrogated.

'The Legislature foresaw some of the evils and dangers that might result from the passage of this act, and did what could be done to prevent them by enacting that the neglect or refusal of the accused to testify should not create a presumption against him.'

Ruloff v. People, 45 N.Y. 213.

In the case of Commonwealth v. Harlow, 110 Mass. 411, the court said:

'the St. of 1870, c. 393, § 1, which makes defendants who are charged with crimes and offenses competent witnesses, provides that their neglect or refusal to testify shall not create any presumption against them. This provision conforms to Article 12 of the Declaration of Rights, which declares that no subject shall be compelled to furnish evidence against himself. Since this class of defendants are allowed to testify if they will, there is some danger that if one exercises his right of silence, the jury will look upon it as a proper matter to weigh against him in considering the question of his guilt. It is important that courts should carefully guard his constitutional right.'

It is urged by the state that, because the trial judge, upon objection of the defendants, told the jury not to 'regard that portion of the argument in reference to the statements of the defendants themselves,' and told counsel for the state that he could not 'comment on the failure of defendants to testify,' the evil done by the state's counsel in commenting, in violation of the statute upon the failure of the defendants to testify, was cured.

In support of this proposition, there are cited the cases of Young v. State, 70 Fla. 211, 70 So. 19; Lampkin v. State, 70 Fla. 448, 70 So. 440; Landrum v. State, 79 Fla. 189, 84 So. 535. These cases are not applicable to the matter under consideration because they relate to alleged improper remarks by counsel, other than a violation of this statute.

The same is true of the cases of Willingham v. State, 21 Fla. 761, and Clinton v. State, 53 Fla. 98, 43 So. 312, 12 Ann. Cas. 150.

In none of these cases was the question of the violation of the statute which says that a prosecuting attorney...

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