Thomas v. State

• Decision Date: 26 January 1917
• Parties: THOMAS v. STATE.
• Court: Florida Supreme Court

74 So. 1

73 Fla. 115

THOMAS v. STATE.

Florida Supreme Court

January 26, 1917

Rehearing Denied Feb. 20, 1917.

Error to Circuit Court, Leon County; E. C. Love, Judge.

Bertha Thomas was convicted of being an accessory before the fact to the commission of manslaughter, and she brings error. Judgment affirmed.

Syllabus by the Court

SYLLABUS

Section 3178 of the General Statutes of 1906, providing that 'Whoever aids in the commission of a felony, or is accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon,' is in harmony with the common-law doctrine that the conviction of one charged with the crime of being an accessory before the fact must be of the same grade of offense as that of which the principal felon is convicted and is in effect declaratory thereof.

There can be an accessory before the fact in the crime of manslaughter.

Section 4007 of the General Statutes of 1906, providing that, 'In all criminal prosecutions hereafter begun in this state, if the defendant be found guilty of an offense lesser in degree but included within the offense charged in the indictment or information, such verdict shall not be set aside by the court, upon the ground that such verdict is contrary to the evidence, if the evidence produced in such case would have supported a finding, or if such court would have sustained a verdict of guilty of the greater offense,' is not applicable upon a motion in arrest of judgment, since such motion will not lie upon the ground that the evidence is not sufficient to support the verdict.

A defendant tried under an indictment charging the crime of murder in the first degree may be convicted of the crime of manslaughter; such lower degree of homicide being embraced within the indictment charging the higher degree of murder.

Under the provisions of section 3991 of the General Statutes of 1906, providing that, 'Whenever any person indicted for a felony shall on trial be acquitted by a verdict of part of the crime charged, and convicted on the residue thereof, such verdict may be received and recorded by the court; and thereupon any person charged shall be adjudged guilty of the crime, if any, which shall appear to the court to be substantially charged by the residue of such indictment or information, and shall be sentenced and punished accordingly,' a person charged in an indictment with being an accessory before the fact in the crime of murder in the first degree may be convicted of being an accessory before the fact in the crime of manslaughter, though the principal felon has been convicted of the crime of murder in the first degree.

In treating an assignment of error based upon the overruling of a motion for a new trial, an appellate court will consider only such grounds of the motion as are argued before it.

An appellate court should not grant a new trial upon the ground of the insufficiency of the evidence to sustain a verdict of guilty affirmed by the trial court if there is some substantial evidence of all the facts legally essential to support the verdict, and the whole evidence is such that the verdict may fairly have been found on it.

Where there is evidence from which all the elements of the crime may legally have been found or inferred, and it does not appear that the jury were not governed by the evidence, the verdict will not be disturbed by the appellate court on the ground of the insufficiency of the evidence.

A verdict will not be set aside by an appellate court where the propriety of the verdict depends not upon the lack of evidence, but upon the credibility or weight of conflicting competent testimony.

The common-law rule has been changed in this state, and belief neither in a Supreme Being nor in divine punishment is requisite to the competency of a witness.

It is the province and duty of the trial court to determine the competency of a witness.

The mere fact that a witness states on cross-examination that she does not know the consequences nor how she could be punished if she testifies falsely does not render her incompetent on the ground that she does not understand the nature of an oath, especially when she exhibits as much intelligence on the witness stand as ordinary persons of her class.

Pleas in abatement setting up mere irregularities in the selection of jurors should be drawn with the greatest accuracy and precision, and must be certain to every intent. They must leave nothing to be supplied by intendment, and no supposable special answer unobviated. When it affirmatively appears that no possible injury could accrue to a defendant by an irregularity not amounting to a substantial departure from the requirements of law in the selection and impaneling of jurors, an objection thereto should not avail.

COUNSEL W. C. Hodges, of Tallahassee, and Fred H. Davis, Jr., of Tallahassee, for plaintiff in error.

T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the state.

OPINION

SHACKLEFORD J.

An indictment was returned against Robert Hopps and Bertha Thomas, charging the former with the crime of murder in the first degree and the latter with the crime of accessory before the fact. A severance was granted, and Robert Hopps was first pur upon trial, found guilty of murder in the first degree with a recommendation to the mercy of the court, and sentenced to confinement at hard labor in the state prison for the period of his natural life. On the following day after the conclusion of the trial of Robert Hopps Bertha Thomas was placed on trial, found guilty of being an 'accessory before the fact to the commission of manslaughter,' and sentenced to confinement at hard labor in the state prison for the period of 20 years. Bertha seeks relief here by a writ of error and has assigned five errors. We shall follow the course pursued by the counsel for the respective parties and discuss the assignments in the order in which they are argued before us.

The first assignment so argued before us is the second, which is that 'the court erred in overruling defendant's motion in arrest of judgment,' which motion is as follows:

'Now comes, by her attorneys, the defendant, Bertha Thomas, who was indicted for being an accessory before the fact to murder in the first degree, and who was convicted of being an accessory before the fact to manslaughter, and moves the court to arrest judgment in said cause:

'First. Because the verdict of the jury is contrary to the law.

'Second. Because the verdict is contrary to the evidence.

'Third. Because no sentence could be imposed on the defendant under the circumstances of this case on such a verdict as was returned by the jury.'

The only ground of this motion which is argued is the third. It is earnestly contended that, as the principal, Robert Hopps, had been convicted of the crime of murder in the first degree, Bertha Thomas, who was charged in the same indictment with the crime of being an accessory before the fact, could legally have been convicted only of the particular degree of crime of which her principal had been convicted, which was murder in the first degree. If this contention is well founded, then the motion in arrest of judgment should have been granted, in accordance with the principles announced in Harris v. State, 53 Fla. 37, 43 So. 311. It is therefore incumbent upon us to determine whether or not the contention is well founded. It seems to be conceded by the counsel for the state, and, we think, correctly, upon the authority of Ex parte Bowen, 25 Fla. 214, 6 So. 65, that Bertha Thomas was not indicted and convicted of substantive felony, as might have been done under section 3179 of the General Statutes of 1906, which is as follows:

'Whoever counsels, hires or otherwise procures a felony to be committed, may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction, or may be indicted and convicted of substantive felony, whether the principal has or has not been convicted or is or is not amenable to justice; and in the last-mentioned case may be punished in the same manner as if convicted of being an accessory before the fact.'

Also see the discussion in Bowen v. State, 25 Fla. 645, 6 So. 459; Keech v. State, 15 Fla. 591; Montague v. State, 17 Fla. 662.

Having been indicted and tried for the crime of being an accessory before the fact, it is further contended that the common-law principle prevails, and that the defendant could have been convicted only of the crime of accessory before the fact to murder in the first degree, of which her principal had been previously convicted, and that the verdict finding her guilty of the crime of an 'accessory before the fact to the commission of manslaughter' was illegal and unwarranted, and that no valid judgment could be entered thereon. A number of authorities are cited as to this common-law principle, among which is 1 Wharton's Criminal Law (10th Ed.) § 230, wherein we find the following statement:

'At common law, the assumption is that the guilt of the perpetrator (principal) is imputable to the instigator (accessory before the fact), and hence the conviction of the latter is to depend on the conviction of the former, as a condition precedent, and must be of the same grade of offense.'

This must be conceded to be a correct statement of the common-law doctrine; therefore there is no occasion to refer to or discuss the other authorities to the same effect which have been cited to us. We might further concede that section 3178 of the General Statutes of 1906 is in harmony with the common-law doctrine and in effect declaratory thereof. Such section...