Washington v. State

• Decision Date: 17 December 1923
• Citation: 86 Fla. 533,98 So. 605
• Parties: WASHINGTON et al. v. STATE.
• Court: Florida Supreme Court

98 So. 605

86 Fla. 533

WASHINGTON et al. v. STATE.

Florida Supreme Court, Division B.

December 17, 1923

Rehearing Denied Jan. 18, 1924.

Error to Circuit Court, Palm Beach County; E. C. Davis, Judge.

Randolph Washington and another were convicted of murder in the second degree, and they bring error.

Affirmed.

Syllabus by the Court

SYLLABUS

Trial court has almost unlimited discretion in discharging jurors. In this country jury duty is one of the greatest responsibilities incident to citizenship, and it is the rule and policy of the law to secure men for this duty of approved integrity whose minds are wholly free from bias or prejudice either for or against the accused, or for or against either party in a civil case. In making up the panel to serve in any particular case the trial court has an extensive and almost unlimited discretion in discharging any person or persons called to serve on the jury who might in the opinion of the court for any reason not be a suitable person for such service.

Discretion of trial court in discharging one called to serve on jury not disturbed unless some fundamental right of defendant violated. A defendant as a matter of right is not entitled to have any particular jurors try his case, and unless it fully appears that, in the exercise of the discretion reposed in and exercised by the trial court, some fundamental right of the defendants was violated, the ruling of the trial court will not be disturbed.

Primary purpose of view by jury stated; order of view by jury discretionary. The primary purpose of a view by the jury is to assist them to analyze and apply the evidence taken at the trial. Under our statute (section 6091, Rev. Gen. Stats. of Fla.) it is ordered in the sound discretion of the trial court.

No evidence may be taken at view nor prejudicial proceedings had. Under the law in this state no evidence can be taken at the view, and no proceeding can be had, that would in any manner be harmful to a defendant.

Verified diagram or plat of physical objects concerning offered testimony admissible. A diagram or plat verified as a correct representation of physical objects on the ground about which testimony is offered is admissible in evidence for the use of witnesses in explaining their evidence, and to enable the jury to better understand the case.

Reference by prosecutor to defendant as murderer not erroneous where evidence supports such charge. It is not reversible error for the prosecuting attorney to refer to the defendant as a murderer where the indictment is for murder, and the evidence supports the charge.

Excessive vituperation or ridiculous epithets should not be indulged in. Excessive vituperation or ridiculous epithets are out of place, and should not be indulged in criminal prosecutions.

Counsel have wide discretion within rule restricting them in argument to evidence and reasonable deductions therefrom. In argument to the jury counsel for all parties are restricted to the evidence and reasonable deductions therefrom, but within this rule they have a very wide discretion.

COUNSEL

M. D. Carmichael and L. R. Baker, both of West Palm Beach, for plaintiffs in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

TERRELL J.

Randolph Washington and Rufus Thompson were indicted in Palm Beach county for murder in the first degree, the indictment charging Washington, as principal, and Thompson, as being present, aiding, abetting, counseling comforting, encouraging, commanding, and procuring Washington to commit the crime as charged. Both men were convicted of murder in the second degree, and sentenced to the State Prison for life. For review of the judgment writ of error is taken from this court.

The first and second assignments of error challenge the authority of the trial court to excuse the jurors Rhodehamel and Wells on the ground as to Rhodehamel that, if the evidence was more or less circumstantial, he would refuse to convict the defendants, and, as to Wells, that he was conscientiously opposed to capital punishment.

In this country jury duty is one of the greatest responsibilities incident to citizenship, and it is the rule and policy of the law to secure men for this duty of approved integrity whose minds are wholly free from bias or prejudice either for or against the accused, or for or against either party in a civil case. In making up the panel to serve in any particular case the trial court has an extensive and almost unlimited discretion in discharging any person or persons called to serve on the jury who might in the opinion of the court for any reason not be a suitable person for such service. Walsingham v. State, 61 Fla. 67, 56 So. 195; Ammons v. State, 65 Fla. 166, 61 So. 496; 16 R. C L. 253, par. 72. A defendant as a matter of right is not entitled to have any particular jurors try his case, and unless it fully appears that, in the exercise of the discretion reposed in and exercised by the trial court, some fundamental right of the defendants was violated, the ruling of the trial court will not be disturbed. The excusing of the jurors Rhodehamel and Wells by the court did not exclude the defendants from a fair and impartial trial by a competent jury, and was not error.

The fourth assignment of error attacks the order of the court allowing a view of the scene of the homicide without the presence of the defendants; the ground of such objection being that the view was a step or stage in the trial at which defendants must be present.

The primary purpose of a view by the jury is to assist them to analyze and apply the evidence taken at the trial. Under our statute (section 6091, Rev. Gen. Stats. of Fla.) it is ordered in the sound discretion of the trial court. In some jurisdictions it is held that at the view the jury is receiving same as when taking evidence in the courtroom, same as when taking evidence in the court-room, and that therefore the defendant has a right to be present. State v. Sanders, 68 Mo. 202, 30 Am. Rep. 782; People v. Thorn, 156 N.Y. 286, 50 N.E. 947, 42 L. R. A. 368.

Under the law in this state no evidence can be taken at the view and no proceeding can be had that would in any manner be harmful to a defendant. In the case at bar the defendants requested the court to order the view, made no objection to the manner of its taking, and did not request that they be permitted to be present. It does not appear that any proceeding was had at the view harmful to defendants. We do not, therefore, think they can claim their right to be present in person, and this view seems to be supported by the weight of authority in this country. Haynes v. State, 71 Fla. 585, 72 So. 180; Kersey v. State, 73 Fla. 832, 74 So. 983; Shular v. State, 105 Ind. 289, 4 N.E. 870, 55 Am. Rep. 211; State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L. R. A. 33; People v. Thorn, 156 N.Y. 286, 50 N.E. 947, 42 L. R. A. 368; 8 R. C. L. 92; 2 Bishop's New Crim. Proc.§ 965; Starr v. State, 5 Okl. Crim. 440, 115 P. 356; 3 Wigmore on Evidence (2d Ed.) par. 1803, from which the following is quoted and we think is fully decisive of the question presented:

'As to the argument that the jury's view is a part of the trial and that the accused is entitled to be present at every part of the trial the answer is that the accused might equally well claim to be present at the jury's deliberations over their verdict, for that is equally a part of the trial; if there is no inherent and invariable necessity for that part, neither is there for this. As for the related suggestion that the holding of a view in the absence of the defendant is the holding of a part of the trial 'away from the place appointed for the holding of the court,' it would follow from this that the judge and other court officers should be present also; but no one has ever supposed this necessary. It would be, on the contrary, much easier to question the propriety of the court's adjourning and traveling in a body to the place of a view, for such a proceeding would be more open to the criticism that it took the trial 'away from the place appointed for the holding of the court.' It is impossible to argue in the same moment both that the court must be held at the place appointed and that it must be held in part somewhere else. (3) As to the suggestion, based on mere general considerations of fairness and policy, that the defendant's presence is necessary because 'the jurors may receive erroneous impressions' which 'cannot be corrected or removed,' and therefore the defendant should have 'an opportunity to observe the conduct of the jury and whatever occurs there,' there are two answers: First, the defendant, though present, could not lawfully ask questions or make statements; so that the sole value of his presence would lie in the opportunity to see that nothing irregular was done and to obtain such a knowledge of what was done as would assist him in the subsequent conduct of the trial. Secondly, this very opportunity he already fully possesses; for he is represented at the view by a shower, selected by himself and formally approved by the court; this shower points out such parts as the accused has directed, and does so with reference to the forthcoming testimony for that party; and this shower is in a position not only to observe all that is done, but to make all of his observations useful later to his party as may be needed. Every practical advantage to be gained from the accused's presence is already his, by virtue of the ordinary proceedings at a view; and if, in any court's practice to-day, the defendant is not allowed to have one shower appointed as his representative, then the unfairness and disadvantage in such a court arises from the improper

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