Whitten v. State

• Decision Date: 07 July 1923
• Citation: 97 So. 496,86 Fla. 111
• Parties: WHITTEN v. STATE.
• Court: Florida Supreme Court

97 So. 496

86 Fla. 111

WHITTEN v. STATE.

Florida Supreme Court

July 7, 1923

Rehearing Denied Sept. 15, 1923.

Error to Circuit Court, Hardee County; George W. Whitehurst, Judge.

Burnard Whitten was convicted of murder, and he brings error.

Affirmed.

Browne J., and Taylor, C.J., dissenting.

SYLLABUS

Delivery of indictment charging capital offense returned in De Soto county, prior to law creating Hardee county, held to confer jurisdiction on latter county. The provisions of section 12 c. 8513, Laws of Florida 1921, creating the county of Hardee from a part of the territory of the county of De Soto, with the delivery of an indictment charging a capital offense returned by a grand jury of De Soto county, prior to the enactment of this statute, to the clerk of the circuit court of Hardee county, as required by the statute, operate to transfer the case to that county and confer jurisdiction upon the circuit court in and for Hardee county to hear and determine it.

Affidavit of defendant supporting motion in arrest of judgment setting up irregularities in arraignment not sufficient to overthrow formal record entries thereof. Allegations of an affidavit of defendant in support of a motion in arrest of judgment setting up irregularities in the arraignment of defendant are not sufficient to overthrow formal record entries contained in the minutes of the proceedings reciting the due arraignment of the defendant of which the trial court takes notice.

Formal entries of proceedings made by court during trial may not be impeached by affidavit of defendant. The trial court denied a motion in arrest of judgment. The motion was supported by an affidavit of defendant to the effect that when called for arraignment and asked if he answered to the name of 'Whidden,' as stated in the indictment, replied that he did not, but that his name was 'Whitten,' whereupon the state attorney announced that he would have the error corrected, but continued to read the indictment reading it through, after which the defendant made a statement to the court and the court announced that he would not accept the plea tendered by the defendant, but would appoint an attorney to represent him, and thereafter the court did appoint attorneys to represent him, but he was never arraigned in the presence of said attorneys and, in fact, never entered any plea to the indictment. The record recites and the trial judge certifies that the defendant, 'being duly arraigned according to law, did in his own proper person plead not guilty.' In the indictment contained in the transcript of the record and in the original indictment sent to this court for inspection the name of the defendant is given as 'Whitten.' There is no question of the identity of the defendant. Held, no error, upon the theory that formal record entries of proceedings, made during the progress of the trial under the direction and supervision of the trial court which import verity, may not be impeached by an affidavit of the defendant contradictory of the record.

Injury resulting from error, nor error alone, warrants reversal of conviction. The defendant was convicted of the murder of his wife. Being less than 21 years of age, it is contended that at the time of his trial he was a minor and not married, and that the provisions of section 6028, Revised General Statutes 1920, required that notice of the charge to his parents or guardian should have been given 'prior to the trial.' After the trial jury was impaneled and some of the state's witnesses had been examined, one of defendant's counsel was appointed his guardian ad liten. He accepted the appointment. In an affidavit filed by this guardian ad litem in support of a motion for new trial, he states 'that he is guardian and of counsel for Burnard Whitten, the defendant named in the within motion; that he was present throughout the trial of the defendant.' Held that, even if the omission to appoint the guardian and give notice 'prior to the trial' was technically erroneous, it cannot, under the circumstances, be said to require a reversal of the judgment, upon the theory that it is injury resulting from error, not error alone, that warrants an appellate court in reversing a judgment of conviction upon an indictment for crime.

Voluntary confession made subsequent to involuntary confession of same or similar facts held admissible. If each of several confessions of the same crime is complete in itself, the first or any of them may be involuntary and inadmissible in evidence, and the subsequent confession or confessions voluntary and admissible in evidence.

Whether admissions and confessions voluntary, for court; to enable it to determine whether admissions and confessions voluntary, there should be preliminary investigation in absence of jury. The question of whether admissions and confessions ara made freely and voluntarily is for the court to determine, and, to enable it to do this, there should be a preliminary investigation by the court in the absence of the jury.

Burden on defendant to show confession not voluntary. When it appears prima facie that a confession was freely and voluntarily made, the burden is upon the defendant to show that it was, in fact, not a voluntary confession.

Conviction by two juries where defendant confessed not disturbed for technical errors not infringing fundamental rights. Where the evidence is sufficient to support a verdict of guilty, and the defendnt has confessed that he committed the homicide with which he is charged, and two juries of 12 men each, after hearing the evidence, have returned a verdict of guilty without recommendation to mercy, and such verdict has twice received the sanction of the trial judge, and there is nothing in the record to indicate that the jury were influenced by anything other than a due consideration of the evidence, the judgment of conviction will not be disturbed, even though there may have been technical errors of procedure, not infringing any fundamental right of defendant, in the trial of the case.

Evidence held sufficient to sustain conviction of murder in the first degree. Evidence examined and found insufficient to overcome the legal presumption of sanity of the defendant, or, considering all the evidence, to require a finding of reasonable doubt of guilt.

COUNSEL

W. D. Bell, of Arcadia, and A. Yancey Teachy, of Wauchula, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.

OPINION

WEST J.

This cause is here for a second time. Whitten v. State, 82 Fla. 181, 89 So. 421. On a former writ of error the judgment of conviction of murder in the first degree was reversed and upon a second trial there was a verdict of guilty and sentence of death was again imposed. To review this judgment, writ of error was taken from this court. The facts sufficiently apper in the former opinion and dissenting opinion.

The indictment was found and returned by a grand jury in and for De Soto county at the spring term in the year 1920. Subsequently and during the regular session of the Legislature of 1921 De Soto county was divided, and from portions of it other counties, including the county of Hardee, were created. Chapter 8513, Acts of 1921.

Before proceeding with the trial in the circuit court of Hardee county, the defendant, on the 7th day of October, 1921, interposed a plea to the jurisdiction of the court upon the ground that the indictment is a finding of a grand jury of De Soto county, and is not an indictment of a grand jury of the circuit court of Hardee county; that there had been no change of venue of the case from the former to the latter county; and that the indictment had never been legally transferred to and filed in the circuit court of Hardee county. Upon motion of the state attorney this plea was stricken. The indictment, by indorsement upon it, shows that it was filed in the office of the clerk of the circuit court of Hardee county on August 16, 1921. The statute creating Hardee county by section 12 provides:

'All actions, suits and prosecutions, and all proceedings in guardianship or administration, and all other actions, suits, prosecutions or proceedings that may be pending in De Soto county in any court or before any officer or board of said county, upon this act going into effect whereof any court, officer or board of any one of said new counties would have had jurisdiction if said county had been in existence when such action or proceedings were instituted, shall be transferred to the court, officer or board of such new county having jurisdiction of such matters, and all pleadings, papers and documents in any way pertaining to any such action, prosecution or proceeding, shall be delivered by the clerk or other officer, court or board of De Soto county having custody thereof, to the proper officer, court or board of such new county.'

This section, with the delivery of the indictment as required by the statute to the clerk of the circuit court of Hardee county, operated to transfer the cause to that county and to confer jurisdiction upon the circuit court in and for Hardee county to hear and determine it. The plea to the jurisdiction was without merit. There was therefore no error in granting the motion to strike it, nor was there error in overruling the demurrer interposed to the indictment, nor in denying the motion in arrest of judgment presenting the same question.

In support of the motion in arrest of judgment is an affidavit of defendant in which it is stated, in substance, that upon his arraignment preceding the first trial, when asked whether he answered to the name of Burnard Whidden, he replied that he did not answer to the name of Burnard Whidden, but that his name was Burnard Whitten;...