Wadsworth v. State

• Decision Date: 20 January 1939
• Citation: 136 Fla. 134,186 So. 435
• Parties: WADSWORTH v. STATE.
• Court: Florida Supreme Court

186 So. 435

136 Fla. 134

WADSWORTH v. STATE.

Florida Supreme Court, Division A.

January 20, 1939

Rehearing Denied Feb. 17, 1939.

Error to Circuit Court, Suwannee County; R. H. Rowe, Judge.

Cleo C Wadsworth was convicted of an offense, and he brings error.

Affirmed.

CHAPMAN J., dissenting.

COUNSEL Davis & Davis, of Madison, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for defendant in error.

OPINION

THOMAS Justice.

Taking the questions involved in the order in which they have been presented by counsel for the State and for the defendant, we will first discuss the one whether the trial court erred in denying the motion of the defendant for a change of venue.

Under the statute, Sec. 4337 of the Compiled General Laws of Florida, the party to a civil cause or a defendant in a criminal case wishing a change of venue shall apply under oath stating that he fears 'he will not receive a fair trial' on account of the influence of the adverse party 'over the minds of the inhabitants of the county', or because the applicant is 'odious to the inhabitants of the county'. Among other requisites is the one that the facts on which the change of venue is based shall be given fully and the application must not only be certified by counsel but also supported by affidavits of at least two reputable citizens not of kin to the defendant or his counsel.

Under the law, Sec. 4340, C.G.L., the adverse party has the right to traverse the allegations of the application, and it is the duty of the court to hear the evidence produced by either party to the controversy.

In this case the defendant presented his motion for change of venue stating that he had 'reasonable ground to fear that it will be impracticable to obtain a qualified jury for the trial' of his case; that he and nine other defendants were charged with the commission of the offense, one of whom had entered a plea of guilty and several of whom had made confessions implicating the applicant, all of which was 'common knowledge to every citizen * * * or practically every citizen qualified for jury service' in the county. The defendant further set out that the deceased was murdered by a mob, which had resulted in widespread discussion of the case, and that unless he was given the change of venue he would be deprived of his right to trial by a fair jury. This application was substantiated by four persons who swore that the facts in it were true and that they believed it 'impracticable to secure a qualified jury to serve in the case'.

The statement in the defendant's application and in the supporting affidavits that it would be impracticable to obtain a jury within the county to render a fair and impartial verdict hardly complied with the requirements of the statute that it be shown that the defendant was so odious to the inhabitants of the community that he could not receive a fair trial.

It appears from the record that a venire was issued for one hundred jurors, seventy-five of whom reported and twenty-eight of whom were excused from service by the court. This left forty-seven in attendance. From the latter number, twelve were selected to try the case. In his order the Judge provided that 'If it should appear during the selection of a jury that a change of venue would serve the ends of justice, the Court will give due consideration to any motion for such change'. The motion for such change was not renewed. We are unable to determine the number of challenges for cause, or the number excused in the exercise of peremptory challenges, but the fact remains that out of forty-seven men, twelve were found who were sworn in chief to pass upon the issues involved.

It is the law of the State, and is conceded by counsel for the defendant, that a motion for change of venue is addressed to the sound discretion of the trial court and we are but repeating when we say that such a ruling will not be disturbed unless it appears that the court was unfair in its ruling and 'was guilty of a palpable abuse of discretion.' See Jeffcoat v. State, 103 Fla. 466, 138 So. 385, and authorities therein cited.

In Jeffcoat v. State, supra, it is true that several witnesses, introduced by the State in opposition to the motion for change of venue, were examined in open court but this was in response to a showing that articles had been published in newspapers of three cities, purporting to give the evidence and defendant's confession. The motion was supported, too, by thirty-four affidavits setting forth that because of the activities of a justice of the peace the public had become hostile to the defendant.

Here the motion for change of venue has appended an affidavit signed by four persons, and the State replied in kind by filing ten separate ones subscribed by men residing in eight different precincts, from various walks of life, and who had lived in the county for periods ranging from two to fifty-eight years.

We believe the Circuit Judge cannot be charged with any abuse of discretion in denying the application to change the place of the trial.

We reach the next question upon which we are asked to pass, namely, Was the court in error in denying the motion for continuance?

In substance the motion, signed and acknowledged by Mr. A. C. Johnson, who had been appointed by the court because of defendant's insolvency, averred that counsel had been engaged in the actual trial of other cases every day since his designation to represent accused and had been unable therefore to 'investigate the authorities, together with the evidence' which the defendant would produce at the trial.

It seems fundamental that a defendant shall be given time to prepare his defense and we will add nothing to this exposition of the law as it was so ably and eloquently expressed by Mr. Justice Ellis in the case of Coker v. State, appearing in 82 Fla. 5, 89 So. 222, however the facts in the instant controversy are not analogous to those which inspired Mr. Justice Ellis' remarks.

The rules by which we are governed in determining whether error was committed by the trial judge are: first, the conclusion must be based on the facts in this particular case; and, second, abuse of discretion must be clearly shown. Moore v. State, 59 Fla. 23, 52 So. 971.

The chronology of the procedure, beginning with the finding of the indictment and ending with the trial, follows: The defendant was indicted November 10th. Counsel was appointed by the court November 17th. On the same day it was agreed that trial would begin Nobember 23d. On the latter day the motion for continuance was filed and denied. The trial commenced November 23d and was concluded on the 26th.

We are convinced that the time which elapsed between the finding of the indictment or even the appointment of counsel and the trial is but a circumstance in deciding whether the defendant was given such a speedy trial that injustice resulted.

The record discloses not the slightest reflection on the ability of the attorneys or their zeal in protecting every right to which the defendant was entitled. The lawyer appointed by the court was assisted in the trial by another who in his home county was assistant solicitor. In defendant's behalf was filed the motion for change of venue. When accomplices were called as witnesses for the State the jury were, in each case upon motion of counsel, warned to receive the testimony with caution. Instructions were prepared and requested by the defendant's counsel and witnesses thoroughly examined by them. In the course of the inquiry only four persons were named by defendant as having seen him after he left home the night of the murder and who did not testify, two co-defendants and two men at Mayo in an adjoining county.

A perusal of the record leads us to determine that no abuse of discretion occurred in the denial of the motion for continuance.

We will discuss the third, fourth and fifth questions together because the argument is to some degree appropriate to all of them.

It is strenuously urged that no basis can be found in the indictment or evidence to justify the instruction that when two or more persons conspire to commit an unlawful act, each is responsible for such results as could have been foreseen, even though the particular result was not intended.

The State elected to go to trial on the first, second and seventh counts of the indictment. The first charged the defendant and others with assaulting and killing the deceased; the second and seventh alleged that the defendant and one other committed the murder, and that the remaining defendants were aiders and abetters.

We think that the jury could not have been confused by the instruction even though it might be considered irrelevant to the facts and we cannot offer encouragement to the position that defendant was prejudiced because he was held responsible for a death resulting from a conspiracy where he had part in the former but was innocent of the latter.

The evidence which the jury had a right to, and obviously did believe was that Cleo C. Wadsworth and seven others, including Robert M. Morrison and Stafford Crews, congregated and left in a car for Mayo to call on Ozzie O. Hurst, resident of their neighborhood, at Luraville in Suwannee County, to make him account to them for certain misdeeds. Upon reaching Mayo, whence Hurst had gone with his family to attend a show, they learned that Hurst had left to return to his home. In Mayo the defendant and his companions had temporarily exchanged their truck for a larger one and all set out in pursuit of Hurst. On a narrow clay road they overtook him, made him drive his car out of the road, whereupon they drove alongside and stopped within a few feet of the Hurst car. The...