Shepherd v. State
| Decision Date | 16 May 1950 |
| Citation | 46 So.2d 880 |
| Parties | SHEPHERD et al. v. STATE. |
| Court | Florida Supreme Court |
Alex Akerman, Jr., Joseph E. Price, Jr., and Akerman, Akerman & Price, Orlando, and Franklin H. Williams, New York City, for appellants.
Richard W. Ervin, Atty. Gen. and Reeves Bowen, Asst. Atty. Gen., and J. W. Hunter, Tavares, for appellee.
On July 20, 1949, a grand jury of Lake County, Florida, presented an indictment in open court against Samuel Shepherd, Walter L. Irvin, Charlie Greenlee and Ernest A. Thomas charging each of them with the crime of rape. It alleged that each of the defendants with force and violence did feloniously ravish and carnally know a named famale, then seventeen years of age, on July 16, 1949, in Lake County, Florida. On August 12, 1949, the defendants (except Ernest A. Thomas) were brought into court, accompanied by their attorney Harry E. Gaylord, and were asked if they were ready for arraignment, and, having answered through counsel in the affirmative, they were duly arraigned and each entered a plea of not guilty to the indictment.
It appears by the record that the three defendants are colored men. When the men were arraigned Samuel Shepherd was 22 years of age, Walter L. Irvin was 22 and Charlie Greenlee was about 16, but his father was in attendance at the arraignment. Samuel Shepherd and Walter L. Irvin were residing with their parents in the Groveland area, being the southern portion of Lake County, while Charlie Greenlee was working at Gainesville but was visiting with Thomas in the Groveland area of Lake County on the night of July 15, 1949. These men were not able financially to employ counsel and at the time of arraignment were represented by an attorney appointed by the court. Each was arrested within a few hours after the commission of the alleged crime and by an order of the court transferred for safe-keeping from the Lake County Jail to the State Prison at Raiford, but each was returned to Trvares on August 12, 1949. On August 12, 1949, the case was set by the court for trial August 29, 1949.
A New York attorney, having a connection with a certain fund under the control of the National Association for the Advancement of Colored People, came to Florida and interviewed the defendants at the Raiford Prison and otherwise made an investigation into the guilt of the defendants. He returned to New York from Florida with his report. He came to Florida on the case for the second time for the purpose of employing counsel for the defendants. He interviewed several Florida attorneys prior to obtaining counsel but succeeded on the night of August 22, 1949. On August 24, 1949, the recently retained counsel appeared in court and presented numerous motions. Attorney Gaylord, of the Eustis bar, declined to accept employment in behalf of the defendants but stated in open court if he were by the trial court appointed to represent the defendants he would honestly endeavor to discharge his duty and obligation as an officer of the court. After counsel was obtained by the defendants attorney Gaylord was discharged as counsel by an order of the court.
The record discloses that considerable testimony and many exhibits were offered in support of the several motions presented to the Court for the defendants. The time between August 24th and 29th, 1949, was largely consumed in the presentations to the trial court of the evidence in support of the motions, the merits of which will later be considered. The trial court, in light of developments, saw fit to reset the date of trial from August 29, 1949 until September 1, 1949, on which date the defendants were placed upon trial and a verdict of guilty rendered against each defendant, but the jury recommended mercy to Charlie Greenlee and as a result he was given a life sentence, but the death penalty was imposed in the court below as against Samuel Shepherd and Walter L. Irvin. Shepherd and Irvin have perfected their appeal here.
Samuel Shepherd, Walter L. Irvin and Charlie Greenlee, on August 29, 1949, petitioned the trial court for an order removing the cause to another county as provided in Chapter 911, F.S.A. The petition recited fourteen grounds for the removal of the cause. The pertinent reasons set out were: (1) the movants feared mob violence in Lake County; (2) the delay incident to the employment of satisfactory counsel; (3) the time for counsel to investigate and prepare for trial was insufficient; (4) the hostile public sentiment against the movants; (5) a mob gathered at the jail in Tavares and demanded that the movants be turned over to it; the home of the family of one of the movants was destroyed; members of the Negro race in the Groveland area were intimidated by the mob; widespread newspaper publicity in the area and other Florida counties had inflamed the public maind in Lake County; the public hostility and indignation in Lake County rendered it impossible to obtain a fair and impartial trial guaranteed by our State and Federal Constitutions; (6) a hostile atmosphere to the movants 'now exists in Lake County and permeates the court house where the trial is to be had'; (7) 'wild rumors are prevalent and mobs are likely to take the law into their hands'; (8) the inflamed public mind in Lake County will prevent the movants from testifying in their own behalf; (9) the movants were beaten by law enforcement officers of Lake County; (10) the law enforcement officers of Lake County were hostile to the movants and their attorneys; (11) the home of the father and mother of Samuel Shepherd was burned by a mob and the family and other Negroes were removed from the Groveland area to prevent a lynching (but returned to their homes); (12) troops were called out to maintain order about Groveland; (13) intimidation of the Negroes prevents them from giving testimony in behalf of the movants; (14) a fair and impartial trial guaranteed by both the State and Federal Constitutions cannot be had in Lake County.
The State of Florida, by an appropriate pleading, denied each and every allegation set out by the movants for a removal of the cause and the trial court heard evidence on the issues made by the pleadings. This Court is committed to the rule that an application for a change of venue is addressed to the sound discretion of the trial court and so long as the applicable law is substantially complied with, a ruling refusing to grant a change in venue will not be disturbed except upon a showing that there has been a palpable abuse of discretion. Patterson v. State, 157 Fla. 304, 25 So.2d 713; Wadsworth v. State, 136 Fla. 134, 186 So. 435, and similar cases.
It is not disputed that Irvin and Shephered lived at or near Groveland and a mob burned the Shepherd home and two other houses about Groveland; that shortly thereafter troops were called and stationed at Groveland to preserve order but were removed from the troubled area on July 24, 1949. It is true that strained racial relations existed in about a five-mile square area which embraced Groveland, Mascotte and Starkey's Still. The Flare subsided on or before July 24, 1949, the colored people returned to the area, order thereafter prevailed and the troops were recalled. Our study of the record reflects the view that harmony and good will and friendly relations continuously existed be tween the white and colored races in all other sections of Lake County. The inflamed public sentiment was against the crime with which the appellants were charged rather than defendants' race. It is true that the newspapers carried reports of the alleged crime, but the impression of prejudice, if any made, yielded to the sworn testimony. A venire of 213 jurors issued and 81 jurors were examined on their voir dire when a jury of 12 men was obtained satisfctory to counsel and accepted to try the case.
Counsel for appellants cite our holding in Johnston v. State, 112 Fla. 189, 150 So. 278, and similar cases, to sustain the contention that the trial court erred in denying the motion for a change in venue. The facts presented here are in accord with our holding in Powell v. State, 131 Fla. 254, 175 So. 213; Hysler v. State, 132 Fla. 209, 181 So. 354; Wadsworth v. State, 136 Fla. 134, 186 So. 435, and Haddock v. State, 141 Fla. 132, 192 So. 802. An abuse of discretion in denying the motion has not been made to appear.
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