Tillman v. State

• Decision Date: 07 February 1950
• Citation: 44 So.2d 644
• Parties: TILLMAN v. STATE.
• Court: Florida Supreme Court

Page 644

44 So.2d 644

TILLMAN v. STATE.

Supreme Court of Florida, en Banc.

Feb. 7, 1950.

Rehearing Denied March 6, 1950.

Edgar W. Waybright, Sr., Roger J. Waybright, P. Guy Crews, Jacksonville, and Reuben A. Garland, Atlanta, Ga., for appellant.

Richard W. Ervin, Attorney General, and Reeves Bowen, Assistant Attorney General, for appellee.

CHAPMAN, Justice.

The appellant-defendant, Henry V. (Skimp) Tillman, was indicted in the Circuit Court of Daval County, Florida, for the murder of Frank E. Wood. Shortly thereafter he was placed upon trial in the same court and a jury, after hearing all the testimony, returned a verdict of murder in the first degree, without recommendation as to mercy. The trial court denied defendant's motion for a new trial and the death sentence was imposed. The defendant appealed. It appears that Frank E. Wood was short at the corner of State and Main Streets in the City of Jacksonville about 2:30 p. m., August 12, 1948, and languished until November 28, 1948, and died. Wood lived three months and sixteen days after the appellant-defendant shot him.

The record discloses that the appellant operated a bar on August 12, 1948, situated at the northwest corner of Main and State Streets in Jacksonville, Florida, and the deceased and his brother, Edmund Wood, went to the saloon for a drink of beer and when there were served by the appellant. A conversation ensued between the two Wood boys and the appellant about some criminal cases of county-wide interest previously tried in Duval County, to wit: the Hyslers, Melvin or Smitty cases. It appears that a fight occurred between Frank E. Wood, the deceased, and the appellant-defendant, during which the appellant shot Wood in the shoulder and the pistol ball ranged backward severing his spinal cord. The short rendered Wood immediately helpless and he fell to the floor, as his body below the place of severance of the spinal cord was paralyzed.

We find conflicts and disputes in the testimony on the question as to who started the fight or who was the aggressor. The appellant's testimony disclosed that he was in the act of leaving the bar to enter his automobile--then parked at the side door of his bar--and as he came from behind the counter of the bar, the deceased struck him and acted as though he would draw a pistol, when the appellant fired the fatal shot. It was his contention that he shot Wood in order to protect his own life and during the progress of the trial adduced evidence to sustain this theory, and the issue so made was submitted to the jury by the trial court, under appropriate instructions.

It was the State's theory, supported by considerable evidence in the record, that the defendant became enraged about a remark of the deceased about the criminal cases and then took his pistol and went from behind the counter to the place the deceased was sitting in the open space of the bar and struck him with his hand--the deceased struck back--and the defendant then shot him. The State contended that the defendant was not on his way to his automobile to go home when he came from behind the counter of his bar, but the only purpose was an attack on the deceased. The jury heard the disputes and conflicts in the testimony given by the State's and defendant's witnesses and had the exclusive right, under our judicial system, to decide which group of these witnesses it would believe and which group it would not believe. The jury's verdict settled the controversy. The errors relied upon for reversal are: (1) the trial court was disqualified; (2) the dying declaration of the deceased was erroneously admitted into evidence; (3) the testimony of the court's witnesses was prejudicial; (4) the charges of the trial court and inflammatory argument of the State Attorney deprived appellant of an impartial trial; (5) the evidence adduced was insufficient to support the verdict; (6) alleged statements in the dying declaration were prejudicial.

Pursuant to the rpovisions of Section 38.02, F.S.A., on the 12th day of January, 1949, within the thirty day period, the defendant through counsel filed a suggestion of disqualification of the Trial Judge as Judge in said cause, to wit: Honorable Bryan Simpson. The petition recited: (1) the filing of the indictment on December 17, 1948: (2) Attorney John A. Rush on December 23, 1948, filed suit against the appellant in behalf of Martha Wood, widow of Frank E. Wood, claiming damages in the sum of $100,000. John A. Rush was a witness to the dying declaration made by the deceased and would give testimony in behalf of the prosecution at the trial and against the defendant-appellant. Attorney John A. Rush married the sister of the trial Judge, Honorable Bryan Simpson; (3) that the trial Judge, being related within the third degree to attorney John A. Rush and the latter being a witness against the defendant, the trial Judge, because of this factual situation, became interested in the prosecution of the cause in the lower court and came within the inhibitions of Section 38.02, F.S.A.; (4) that John A. Rush, the best of defendant's knowledge and belief, was to be paid in the civil case upon a contingent basis; (5) other pertinent facts are set forth in the petition of disqualification of the trial Judge but the points raised may be ruled upon here on the facts above stated. Counsel for appellant cite our holding in Villaneuva v. State, 127 Fla. 724, 173 So. 906, and State ex rel. Caro, County Solicitor, v. Reese, Judge, 142 Fla. 734, 195 So. 918, and many other authorities.

The record reflects that the trial Judge on February 8, 1949, filed in the cause a statement prescribed by Section 38.04, F.S.A., and held that he was not disqualified to hear the cause and that attorney John A. Rush was not interested in the prosecution of the appellant under the indictment lodged against him. Exhibit A attached to the trial court's statement as provided for by Section 38.04, supra, is a record of the proceedings of the hearing on the disqualification petition had in the court below under date of January 13, 1949. Paragraph 11 of the petition of disqualification is viz.: 'That John A. Rush to the best of defendant's knowledge and belief, is to be paid in the civil cause on a contingent basis'. The burden of proof of the quoted allegation rested, as a matter of law, on the petitioner. The petitioner and counsel failed to prove the allegation, as shown by the record: (Page 41).

'The Court: Now, the eleventh numbered paragraph of the suggestion, the truth of that, of course, is not apparent, as to the basis of Mr. Rush's employment; the basis of his employment is not apparent from anything here.

'Mr. Waybright: No, sir.

'The Court: I don't know whether you care to offer anything about that or not. I have no way of determining that.

'Mr. Waybright: I don't think it would be material, but the basis of that is, of course, only--so far as we know, we have no knowledge of the contract between Mr. Rush and these parties, except the general nature of contracts of that sort between clients and attorneys--they are usually on a contingent basis and from the amount of the suit and so on. I think it would necessarily have to be, but it is information and belief only. That's correct, isn't it?

'Mr. Crews: Yes.

'The Court: Now, is there any testimony that you want to offer as to the truth of anything else in there?'

The record reflects that after a hearing on the petition of disqualification in which counsel for appellant were present and given an opportunity to prove the pertinent allegations thereof, the trial judge, on January 13, 1949, entered an order to the effect that he was not disqualified to sit in the cause--a recital in the order is viz: 'and the undersigned Judge having examined the smae, and satisfied himself of the truth of the material and relevant matters of fact alleged therein which do not appear of record in this cause;' and concluded that attorney John A. Rush was not interested in the criminal prosecution. It is quite true, and the writer frankly concedes, that members of the bar frequently are employed upon a contingent basis to represent clients in negligence suits, but in the case at bar counsel for appellant alleged but failed to prove that attorney John A. Rush was employed on a contingent basis by the widow, Martha Wood, to represnt her in the civil cause brought against Henry V. Tillman. If the evidence adduced on the point before us during the progress of the criminal prosecution as reflected by the record may by us be considered, then the conclusion is inescapable that the contention is without merit.

It is next contended that the judgment below should be reversed because the trial court failed and omitted to file a sworn statement as to his qualification to sit in the cause until February 8, 1949, some time after the rendition of the verdict which is dated January 22, 1949. Section 38.04, F.S.A., provides: 'Whenever any judge shall enter an order under § 38.02 declaring himself qualified to act in said cause, he shall contemporaneously therewith file therein a sworn statement that to the best of his knowledge and belief the ground or grounds of the disqualification named in the suggestion do not exist.' Arguendo, let us concede that the trial court, in light of the existing conditions and circumstances, failed and omitted to 'contemporaneously' file the sworn statement with the order of qualification dated January 13, 1949, and was tardy in so doing from January 13th until February 8, 1949, can it be truthfully said that the appellant's rights have been prejudiced by the delay? The delay, doubtlessly, was due to the time consumed in the trial of the criminal case but no effort or request appears of record as made by the appellant or his counsel for a filing earlier than February 8, 1949. It was not brought to the attention of the trial court, as we study the record, what right, if any, the appellant suffered...