Washington v. State

Decision Date17 February 1928
Citation116 So. 470,95 Fla. 289
PartiesWASHINGTON v. STATE.
CourtFlorida Supreme Court

En Banc.

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Abe Washington was convicted of first degree murder, and the conviction was affirmed on appeal. An order denied a petition for a writ of error coram nobis, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

'Writs of error coram nobis' apply to errors of fact not appearing of record, or unknown, and which could not have been known by reasonable diligence, and which would have prevented judgment where statute provides no other remedy. The functions of a 'writ of error coram nobis' are limited to an error of fact for which the statute provides no other remedy, which fact did not appear of record or was unknown to the court when judgment was pronounced, and which if known, would have prevented the judgment, and which was unknown and could not have been known to the party by the exercise of reasonable diligence in time to have been otherwise presented to the court, unless he was prevented from so presenting them by duress, fear, or other sufficient cause. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Writ of Error Coram Nobis.]

Writ of error coram nobis does not authorize court to review its opinion. The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court.

Writ of error coram nobis supplements, but does not supersede statutory remedy for granting new trials, or correcting errors; writ of error coram nobis does not lie to correct adjudicated fact issue. The writ of error coram nobis supplements, but does not supersede, the remedy provided in the statute for the granting of new trials or the correction of errors. It is not available where the facts complained of were known before the trial, and where advantage could have been taken of the alleged error at the trial; nor does it lie to correct an adjudicated issue of fact.

Statutes for selecting jurors do not discriminate, nor authorize discrimination, because of race or color. The statutory provisions of this state for selecting, summoning, and impaneling jurors do not discriminate, or authorize any discrimination, against any person for jury duty because of race or color.

Officers administering statutes relating to jurors should not discriminate because of race or color or by other illegal action. It is the duty of the officers charged with the administration or execution of statutory provisions, relating to jurors, to do so without violating the Constitution of the United States, by discriminating against persons on account of race of color or by other illegal action.

Action discriminating as to jurors for race or color on proper proceedings duly taken should be set aside. If in selecting summoning, or impaneling jurors, a discrimination is made against any citizen on account of race or color, such action is not authorized by the statute, is illegal, and upon proper proceedings duly taken for that purpose should be set aside and annulled in toto.

'Equal protection of laws' does not give person right to jury composed wholly or in part of own or any other particular race (Const. U.S. Amend. 14). The constitutional guaranty of 'equal protection of the laws' does not give to any person a right to a jury composed in whole or in part of his own or of any other particular race; but every person being tried in a court of justice is entitled to have a jury selected and summoned without illegal discrimination of any character. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Equal Protection of the Law.]

Officer's discretion in selecting jury should be used to secure best jurors possible without illegal discrimination against any citizen qualified. A large discretion is necessarily allowed the officers charged with the responsible duty of selecting jurors. This discretion should be carefully exercised so as to aid in the proper administration of the law by securing the best juries possible without illegal discrimination against any citizen of the state qualified for jury duty under the law.

Official's action in executing state statute which in terms does not abridge privilege or immunities of United States' citizens, or deny equal protection of laws, is presumed legal. Where the statute of a state in its terms does not abridge a privilege or immunity of citizens of the United States, or does not deny to any person the equal protection of the laws, the action of officials in executing the provisions of such statute is presumed to be legal.

Where official's illegal action in executing valid statute is not admitted, it should be duly proven by usual and proper mode. When illegal action by an official in the administration or execution of a valid statute is charged such illegal action should be duly, properly, directly, and distinctly alleged, and, if not admitted by demurrer or otherwise, should be duly proven or proof thereof duly offered according to the usual and proper mode of procedure in such cases.

Prohibition against denial of equal protection of laws gives accused right by timely and appropriate procedure to ascertain whether members of his race have been unlawfully discriminated against as jurors (Const. U.S. Amend. 14). Under the provision of the Fourteenth Amendment to the Federal Constitution that 'no state shall * * * deny to any person within its jurisdiction the equal protection of the laws,' an accused person has no right to have members of his race selected as jurors for his trial. But such organic provision secures to him the right by timely and appropriate procedure to ascertain whether members of his race legally qualified to serve as jurors have been so unlawfully discriminated against by officers in selecting the jury for his trial as to deny to him the equal protection of the laws, thereby affecting the validity of the trial.

Sheriff's summoning only white jurors to try colored man held not of itself evidence of discrimination on account of color; sheriff's selecting only white men to try colored defendant held not of itself denial of equal protection of laws (Const. U.S. Amend. 14). The mere fact that the sheriff, in executing a venire for petit jurors to try the defendant, who was a colored man, summoned only white men to serve as jurors, and failed and refused to select any colored men of African descent to serve on the jury which was summoned to try the defendant, is not of itself evidence of discrimination against persons of color, solely on account of their color; neither is it a denial to the defendant of the equal protection of the law as contemplated by the Fourteenth Amendment of the Constitution of the United States.

While unlawful discrimination against negroes for race or color in summoning jurors might render summoning illegal, panel of jurors as formed might not be illegal. While an unlawful discrimination against negroes because of their race or color practiced by an officer in summoning jurors may render the act of summoning illegal, the panel of jurors as formed might not be illegal.

Accused accepting competent jury waives right to object to panel for discrimination in summoning jurors for race or color, in absence of duress or other improper influence. Where a jury that is competent under the law, and that is impartial as required by the Constitution, has been tendered, it may be accepted by the accused, who thereby waives his right to object to the panel on the ground that in summoning the jurors members of his race were discriminated against; there being no duress or other improper influence to embarrass or injure the accused.

Timely and appropriate procedure must be used to assert race discriminations in forming jury panels. Timely and appropriate procedure must be invoked in asserting race discriminations in forming jury panels.

Writ coram nobis may not be used to challenge legality of jury accepted by accused, after conviction affirmed on appeal, especially in absence of suggestion of duress or other improper influence, or unfair trial. The writ of coram nobis is not available as a means of challenging, after a judgment of conviction and of affirmance by the appellate court, the legality of the trial jury that was accepted by an accused, particularly when there is no suggestion of duress or other improper influence exerted in forming or accepting the jury as impaneled, and no suggestion that the accused was not fairly tried by a competent impartial jury.

COUNSEL

S.D. McGill and W. H. Harwick, both of Jacksonville, for plaintiff in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

WHITFIELD P.J.

Abe Washington, a negro man, was...

To continue reading

Request your trial
21 cases
  • Hysler v. State of Florida
    • United States
    • United States Supreme Court
    • March 2, 1942
    ......The proof must enable the appellate court to 'ascertain whether, under settled principles pertaining to such writ, the facts alleged would afford, at least prima facie just ground for an application to the lower court for a writ of error coram nobis.' Washington v. Florida, 92 Fla. 740, 749, 110 So. 259, 262; see Skipper v. Schumacher, 124 Fla. 384, 405—408, 169 So. 58; Skipper v. Florida, 127 Fla. 553, 554, 555, 173 So. 692. The latest formulation by the Florida Supreme Court of its function in considering an application for leave to apply to the trial ......
  • Martin v. Dade Muck Land Co.
    • United States
    • United States State Supreme Court of Florida
    • March 26, 1928
    ...... . . SYLLABUS. . . Bonds. authorized by certain statute held obligation of Everglades. drainage district, not of state (Acts 1927, c. 12016). The. bonds authorized to be issued by chapter 12016, Acts of 1927,. are obligations of the Everglades drainage district, and ......
  • Miller v. State
    • United States
    • United States State Supreme Court of North Carolina
    • January 30, 1953
    ......75; 16 C. J.S., Constitutional Law, § 91; 22 C.J.S., Criminal Law, § 91. Hence, the constitutional right of a Negro defendant to be indicted or tried by a jury from which members of his race have not been intentionally excluded may be waived by him. State v. Kirksey, supra; Washington v. State, 95 Fla. 289, 116 So. 470; Merriweather v. Commonwealth. 118 Ky. 870, 82 S.W. 592, 4 Ann.Cas. 1039; Haggard v. Commonwealth, 79 Ky. 366; Keith v. State, 53 Ohio App. 58, 4 N.E.2d 220; Watts v. State, 75 Tex.Cr.R. 330, 171 S.W. 202. It is inherent in the judicial process that courts must ......
  • Herndon v. State, 9871.
    • United States
    • Supreme Court of Georgia
    • May 24, 1934
    ...United States. See, also, to the same general effect, State v. Cook, 81 W. Va. 690, 95 S. E. 792, 794; Washington v. State, 95 Fla. 298, 116 So. 470. The evidence in each of the following cases was materially stronger for the defendant. Lee v. State, 163 Md. 56, 161 A. 284; Carrick v. State......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT