Whitten v. State

• Decision Date: 12 August 1921
• Citation: 89 So. 421,82 Fla. 181
• Parties: WHITTEN v. STATE.
• Court: Florida Supreme Court

89 So. 421

82 Fla. 181

WHITTEN v. STATE.

Florida Supreme Court

August 12, 1921

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

Burnard Whitten was convicted of murder in the first degree, and he brings error.

Reversed for a new trial.

West J., dissenting.

Syllabus by the Court

SYLLABUS

Where a minor of subnormal mentality is convicted without notice to parent or guardian and justice requires a new trial conviction will be reversed. When a minor of apparent subnormal mentality is, without any notice of the charge of a crime against him having been given to his parent or guardian as is required by the statute, put upon trial and convicted of murder in the first degree, and a consideration of the entire record indicates that justice requires a new trial wherein the essential requirements of law are complied with the judgment of conviction will be reversed for appropriate proceedings.

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

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

OPINION

PER CURIAM.

Burnard Whitten was convicted of murder in the first degree for the homicide of his wife and capital punishment was adjudged. A writ of error was taken.

The accused was shown to be under the age of 21 years. The provisions of chapter 6221, Acts of 1911 (Comp. Laws 1914, §§ 3926a, 3926b) were not complied with as to giving notice to parents or guardians of minors who are charged with crime. Without deciding whether the failure to give the notice to parents or guardians, prior to the trial, as required by the statute, was rendered immaterial by chapter 7364, Acts of 1917, removing the disabilities of male minors who have been married, or whether such failure to notify the parent or guardian constituted harmless error under chapter 6223, Acts of 1911 (Comp. Laws 1914, § 1608a), and without determining whether the admission of evidence as to a confession of the accused was erroneous, or whether such error, if any, was rendered immaterial by the defendant's own testimony, the court is of the opinion that upon a consideration of the entire record, and in view of the extreme penalty imposed, justice requires a new trial. When the defendant took the stand to testify, he was asked:

'Q. You know what you are charged with here don't you? A. Yes, sir. Q. What is it? A. Charged with murder. Q. All right, tell this jury here, these 12 men, all about this affair. Tell them in your own language.'

The defendant's testimony indicates that he is, perhaps, not of normal mentality, which makes it important that he should have the assistance of his parent or guardian, if he has one, and the aid of careful counsel to conserve his defense to the extent at least of fully developing the mental responsibility of the accused and of showing mitigating circumstances, if any.

Reversed for a new trial.

BROWNE, C.J., and TAYLOR, WHITFIELD, and ELLIS, JJ., concur.

DISSENTING

WEST J. (dissenting).

Plaintiff in error, referred to herein as defendant, was indicted upon a charge of murder in the first degree. The person alleged to have been murdered was his wife. He was charged with having shot her, inflicting a mortal wound from the effect of which she immediately died. Upon a trial defendant was represented by counsel appointed by the court. The verdict was guilty as charged. Sentence of death was imposed. There was no motion for a new trial. Writ of error was taken from this court to review the judgment.

Under the first assignment it is contended that there was error in not submitting to the jury the question of whether an alleged confession of defendant was voluntary.

The confession, evidence of which was offered and objected to, was made by the defendant to the sheriff of the county in his office in the courthouse in the presence of several other persons soon after defendant was taken into custody. The sheriff was called as a witness by the state to give evidence of this confession. The jury was withdrawn while inquiry was made upon the question of whether the confession was voluntarily made. Upon this point, after direct examination by the state attorney, in which the witness testified that no reward was held out and no threats were made in order to induce defendant to make a statement, the following evidence was given by the witness upon cross-examination:

'Q. Sheriff, what was the object and purpose of removing him from the jail to your private office? A. My object was to get a statement from him. I hadn't interviewed him since the killing up until then. I felt it was my duty to interview him and get a statement from him. Q. Did you at that time tell him that he was under no obligation to make a statement if he didn't want to? A. I told him not in those words. I told him that--if you wish I will tell you the conversation. Q. All right, sir. A. I says, 'Mr. Whitten, probably you realize the seriousness of what you are accused with.' I says, 'I would like to have you make a statement to me if you feel like it, but before making this statement I want to warn you that any statement you make will be used against you at your trial;' and I cautioned him in the presence of all these witnesses who were in my room, before he ever made any statement at all. I didn't say it would probably be used against him. I told him it would be used against him. I says, 'Don't tell me anything but the truth about it,' and he said, 'Sheriff, I will tell you nothing but the truth about it.' * * * Q. Then you examined him? A. Wait, now, I will tell you how that happened. I laid the matter before him, exactly the case that I had and what was confronting him, before he ever made any further statement, and after I laid this matter before him be then said he would tell me the whole matter about it, which he did. Q. Why did you inform him of what you knew about it? A. Why, because I have run up with just the same proposition I have run up against here, time and again, and I felt that was the best way to get a true statement, to let him know I wasn't misleading him, and I have found in my experience the best way to get a true statement from the defendant is to let him know you are not miseading him, to lay the matter before him, and then he will have more confidence in you and feel like making a true statement. * * * By the Court: Q. Do I understand you to say you told him he needn't make a statement unless he felt like it? A. I told him this, Judge: That I would like to have a statement from him relative to the killing, and I said, 'You understand there is a serious charge placed against you and I haven't had any chance to talk with you about this. Any statement you will make will be used against you and be sure and tell me the truth.' That is the way it came up. I sent for him over at the jail. Q. Did you give him to understand he didn't have to make a statement? A. Well, no; I didn't tell him those words. I didn't tell him he had to make one either. Q. I understand you to say a few minutes ago that you told him that you would like for him to make a statement if he felt like making one. A. No sir: I said, 'Mr. Whitten, it has come my duty now to talk to you and I would like to get a statement from you.' Told him who I was. I had never seen him. I said, 'This is the sheriff, and beforehand I want to caution you.' I says, 'this is a serious charge that has been lodged against you and I want whatever statement you--I want to tell you whatever statement you will make I will have to use it in the court against you, and I want you to be careful and don't tell me anything but the truth;' and he proceeded and told me all right, he would, and then you remember what I told you that Whitten said.'

Other evidence was taken upon this point. The defendant himself denied that his statement was voluntary, and said in substance, that the confession which he made was extorted from him by threats. He was contradicted in this by others who were present. The court ruled that the evidence of the confession was admissible. The jury was recalled and evidence of defendant's confession to the effect that he shot and killed the deceased in the manner charged in the indictment was offered.

Unless a confession was freely and voluntarily made, it is not admissible against a person charged with crime; but it is the province of the court and not of the jury to determine in the first instance whether such confession was voluntary. If the court decides that the confession was voluntary, it admits the evidence. If it decides that the confession was not voluntary, it excludes the evidence and it does not go to the jury. Bates v. State, 78 Fla. 672, 84 So. 373; Stiner v. State, 78 Fla. 647, 83 So. 565; Sims v. State, 59 Fla. 38, 52 So. 198; 1 R. C. L. p. 577.

In Bates v. State, supra, the court said:

'The question of whether an admission is freely and voluntarily made is for the court to determine and it is not a matter of the opinion of the witness. The proper method is to have the witness state the circumstances under which they were made so that the court and not the witness may determine if they were free and voluntary. This investigation should be made in the absence of the...