Singer v. State

Decision Date13 February 1959
Citation109 So.2d 7
PartiesPhilip B. SINGER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Hollis V. Knight, Starke, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

O'CONNELL, Justice.

Defendat Philip B. Singer was indicted and tried for the murder of Marilyn Burch Fagan. The jury returned a verdict of guilty of murder in the first degree and made no recommendation to mercy for the defendant. The court accordingly entered its judgment and sentence of execution against the defendant. Defendant's motion for new trial was denied and he thereupon instituted this appeal.

Defendant raises ten points on appeal, none of which questioned the sufficiency of the evidence to support the conviction of murder in the first degree. However, under § 924.32, Fla.Stats.1957, F.S.A., this Court is compelled to review the evidence to determine whether the interests of justice require a new trial, even though the sufficiency of the evidence not be questioned on appeal. In his reply brief defendant concedes that, taking the case as a whole, the evidence submitted by the State supports a conviction of murder in the second degree. We have carefully satisfied ourselves as to the sufficiency of the evidence to support the judgment and sentence. It is unnecessary to recite all of the facts in detail. We will relate only those necessary to a discussion of the points raised here.

The defendant, a deaf-mute, was, in February 1955, employed by the Gainesville Golf and Country Club as a maintenance man. On April 6, 1956, defendant was notified by letter that on April 13, 1956 , his employment would be terminated in the interest of economy. Defendant was notified on April 10, 1956, to take the rest of the week off with pay. On the next day defendant returned to the Country Club and communicated by note to the club's manager, Mr. Earl Sasser. Mr. Sasser testified that defendant in the note told him that he would get even with Mr. Sasser even if he had to take it out on Sasser's family. Mr. Sasser said that when he had read the note the defendant jerked it out of his hands, tore it up and put it in his pocket.

As a result of defendant's visit to the Club on that day, Mr. Sasser went to the County Judge's office and upon his affidavit had a warrant for trespass issued against the defendant. Warrant was served upon defendant and before the trial he went on several occasions to the office of the County Prosecuting Attorney, Mr. Osee Fagan, in an effort to get the case dismissed. The case proceeded to trial and, with Mr. Fagan prosecuting, the defendant was convicted and sentenced to serve a period of time in the county jail.

The defendant furnished bond and was released from the jail. He was taken to his home by his bondsman, who testified that when they reached his home the defendant's wife was not present but had left defendant a note. The witness said that defendant, after reading the note, became very upset and stated that his wife had left him.

The evidence next placed defendant in Gainesville on August 20, 1956, three days before the death of Mrs. Osee Fagan, Marilyn Burch Fagan. A witness testified that he saw him at that time in the city riding in a Ford automobile.

Another witness, a resident of California, testified that the last time he saw his Ford auto in California was on July 23, 1956. The auto was found subsequent to the killing of Mrs. Fagan adandoned near the bus station in Gainesville. One of the defendant's fingerprints was found upon its steering wheel. Mr. Fagan testified that this automobile conformed to the impression he received of the automobile seen by him as related in the following paragraph.

Mr. Fagan testified that on the night before his wife's death he saw a Ford automobile stopped directly in front of his house. The car moved on, turned around and returned, and its occupant flashed a flashlight above the front door of the Fagan residence. At that point Mr. Fagan turned on his outside light and stepped out the front door, whereupon the auto left hurriedly.

The next night Mr. Fagan left home about 7:20 P.M., immediately after his wife had left to go to her mother's home to get their little girl. She left her mother's home at about 7:45 P.M. Her mother's home was about two miles from their home.

A neighbor of the Fagans testified that at some time during the evening he heard what sounded like a commotion or scuffling, followed by what he thought to be a plea for help in a high-pitched voice. He then heard what seemed to be two shots, although they sounded more like cap pistols. A few seconds later he heard a car speed off. He went out into his yard and observed only that a party was in progress at a house across the street, presumed the commotion he had heard came from there and made no further investigation.

Mr. Fagan returned home about midnight and found his wife's body on the walkway in front of his house. She had been shot by a pistol and medical testimony was that death from the shot had been almost immediate.

On the same night, between 9:00 and 9:05 P.M., Mrs. Earl Sasser, wife of the Gainesville Golf and Country Club manager, heard someone at the latched screen door to the front porch of her house. She stepped out onto the porch and spoke three times to the man she saw standing there, but he did not reply. She then observed that he was holding a gun in his hand. She ran into the house as he fired. The bullet missed her and she screamed for help to a meighbor. Mrs. Sasser testified that although she could not see the man's face, she was satisfied that she recognized him as the defendant.

Testimony was adduced that the defendant on that night boarded a bus which left Gainesville at 9:25 P.M. for Jacksonville, Florida. He registered at a hotel there under an assumed name but left shortly after registering, buying an airplane ticket to Washington, D. C. under another assumed name.

In November of 1956 the police in Winnipeg, Canada received information as to the whereabouts of the defendant in that city. They went to that spot, found the defendant and placed him under arrest. He wrote them a note saying, 'I will cooperate with you. Let me pack neat now.'

A .32 calibre revolver was found in the defendant's house and subsequently F.B.I. ballistic experts concluded it was the gun which fired the bullet which killed Mrs. Fagan.

After his arrest defendant, who had been residing in Winnipeg under still another assumed name, was carried to the detective inspector's office in Winnipeg. The following communication, in the form of written inquiries by the Canadian police and written replies by the defendant, took place:

'Q. What is your name? A. I guess you know my real name Philip Singer.

'Q. Where are you from? A. New York.

'Q. Do you know why we arrested you? A. Yes, sir.

'Q. Do you wish to give us a statement? A. I would like to have the public counsel.

'Q. I will tell you that you might be charged with murder. You are not bound to say anything, but anything you do say will be taken down in writing and may be used as evidence. A. I didn't know about murder, I want asylum in Canada. Florida justice is unfair.'

'Q. Why do you say Florida justice is unfair? A. Last time--for trespassing I was tried by jury without lawyer.'

The defendant then wrote 'I didn't know they said me murder', and the policeman replied 'I guess the woman died.' The defendant then replied 'I didn't see her die.' The questioning continued as follows:

'Q. Did you shoot her? A. Accident on shoulder.

'Q. Is it your gun that we found in the suitcase? A. Yes.

'Q. Do you want to say any more? A. Will Eva come here tonight?

'Q. No visitors tonight. A. I want to say a few words to her. She is a wonderful woman. I help her a little. She knows nothing about me.

'Q. We have to see the Inspector tomorrow before you see any visitors. A. I have been here three months working. Forget about gun.

'Q. What was the name of the girl that was shot? A. Wife of prosecutor..

'Q. Is this the same gun that you shot her with? A. I'm helpless. I would rather talk to public counsel. I'll fight extradiction.'

Prior to trial, the court appointed counsel for defendant, who had been adjudicated to be insolvent. The defense counsel filed a motion for Removal of Cause on the grounds the State had an undue influence over the minds of the inhabitants of the County and the defendant was the subject of great public hostility in the County aroused by newspaper publicity. This motion was denied and defendant's challenges for cause to several of the jurors were overruled.

The case proceeded to trial with the results previously noted. Defendant made a motion for new trial on the grounds, among others, that the court erred in denying his motion for removal of cause; in denying his challenges for cause to each of six different jurors; in admitting into evidence testimony as to his alleged attack on Mrs. Sasser; in admitting his so-called 'confession' made to the Canadian police; and in failing to instruct the jury to disregard certain portions of the argument made by the prosecuting attorney in his address to the jury. This motion was also denied.

Defendant argues that even if the evidence supports a murder in the first degree verdict, and we have satisfied ourselves it does, he was not given a fair trial before an impartial jury on the all important matter of recommendation of mercy. Under § 782.04, F.S.A., the penalty for first degree murder is death, but under § 919.23 if a majority of the jury recommends mercy the punishment is a mandatory sentence to life imprisonment, which is equal to the maximum punishment prescribed for murder in the second degree. The importance of the question of a recommendation of mercy in a conviction of first degree murder is obvious.

We will first examine the trial court's action to determine whether it erred in denying the motion for removal...

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