State v. Williams, 35681

• Citation: 198 So.2d 21
• Decision Date: 12 April 1967
• Docket Number: No. 35681,35681
• Parties: STATE of Florida, Petitioner, v. Leroy WILLIAMS, Respondent.
• Court: United States State Supreme Court of Florida

Page 21

198 So.2d 21

STATE of Florida, Petitioner, v. Leroy WILLIAMS, Respondent.

No. 35681.

Supreme Court of Florida.

April 12, 1967.

Rehearing Denied May 17, 1967.

Earl Faircloth, Atty. Gen., and William D. Roth, Asst. Atty. Gen., for petitioner.

Lester Bales, Jr., Zephyrhills, for respondent.

ROBERTS, Justice.

We here review by conflict certiorari the decision of the District Court of Appeal, Second District, in Leroy Williams v. State, 188 So.2d 320 (Fla.App.1966).

Williams was convicted of murder in the first degree with recommendation to mercy for the murder of Percy A. Mong, during the commission of a robbery in which he was the sole participant; he was subsequently sentenced to life imprisonment.

Upon appeal by the defendant from the conviction and judgment, three assignments were considered serious by the appellate court: '(1) Admission into evidence of the statement made by Mr. Mong to witness, Mrs. Oliver; (2) admission into evidence of defendant's confession; and (3) permitting unintroduced and incriminating physical objects to be displayed in the courtroom in the sight of the jury for three days, and then being 'withdrawn' by the state, after the state had first tacitly assured the court the same would be later introduced into evidence.' The District Court held that timely objections had been made regarding such questions and reversed for a new trial on all three assignments.

The only question presented by the petition for writ of certiorari and argued by the parties is: 'Does the opinion of the District Court conflict with the principle and application of the case of Washington et al v. State (1923); 86 Fla. 533, 98 So. 605?' This question involves only assignment of error number (1), supra. Jurisdiction was taken by this court because of conflict with the cited case and because the same rule of law under substantially the same facts produced a different result. Nielsen v. City of Sarasota, Fla.1960, 117 So.2d 731.

The facts as presented by the petition for writ of certiorari and brief of the state, adopted by the attorney for respondent and borne out by the record, reveal that '* * * Percy A. Mong, the deceased was an elderly man who owned and operated a grocery store located about seven miles from Dade City, Florida. Sometime between 8:30 and 9:00 on the morning of January 8, 1965, Mrs. Oliver, a neighbor of Mr. Mong, heard two sounds like firecrackers exploding coming from the direction of the Mong grocery. Mrs. Oliver paid no particular attention to the sound but did notice that immediately thereafter a green and white Chevrolet automobile, driven by a young colored man alone in the car, drove away from the direction of the store at a high rate of speed. Thereafter, Mrs. Oliver got into her car and drove next door to the grocery store to check on Mr. Mong, which was her custom before leaving the vicinity. She stopped and parked the car outside the store, went to the front door, pushed it open and called to Mr. Mong a couple of times but received no response. Fearing that something might have happened, she ran to a neighbor's home on the other side of the Mong residence, called to a neighbor and upon getting no response returned to the store. Thereafter, Mrs. Oliver opened the front door and went in and called Mr. Mong. At first, there was no sound, but when she called him a second time, she heard a groan or moan at the rear of the store. Upon investigation she found Mr. Mong lying behind the counter with his head and shoulder on a stack of paper bags. At this point, Mrs. Oliver inquired: 'What happened, Mr. Mong?' He replied, 'A man tried to rob me, I have been hurt,' and then, 'I need help.' As stated in the opinion of the appellate court, the testimony revealed that Mr. Oliver estimated that it was from five to eight minutes between the time she heard the original 'firecracker sound' and the conversation with Mr. Mong.

In Washington v. State, supra, immediately after the shooting the victim proceeded to the home of his aunt some seventy or a hundred yards distance. Upon approaching the house the aunt asked: 'Henry, what's the matter?' The response was: 'Auntie, Randolph Washington and his old uncle, Rufus Thompson, doubleteamed me out there a while ago; Rufus struck me in the head with a bottle and Randolph shot me.' Assignments of error were to the effect that this testimony of the deceased was not admissible as part of the res gestae and should have been stricken. The court there, citing persuasive authority, held:

'It is often difficult to determine when declarations having relation to an act or transaction should be considered as part of the res gestate, and an equally great difficulty has been experienced in the effort to prescribe general rules for the admission of such. It may, however, be safely said that declarations which were the natural emanations or outgrowths of the act or occurrence in litigation, although not precisely concurrent in point of time, if they were yet voluntarily and spontaneously made so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as necessarily to exclude the idea of design or deliberation, must upon the clearest principles of justice, be admissible as part of the act or transaction itself.'

We think that the principle as enunciated in Washington et al. v. State, supra, is as clear and concise as a rule of law on such a complicated issue can be. The factual situation in the case sub judice is analogous and on consideration of the record it does not appear that any fundamental right of the defendant was impaired by the remarks of Mrs. Oliver and no reversible error was therefore committed. 'Each case must...