Williamson v. State

• Decision Date: 23 February 1923
• Citation: 85 Fla. 188,95 So. 569
• Parties: WILLIAMSON v. STATE.
• Court: Florida Supreme Court

95 So. 569

85 Fla. 188

WILLIAMSON v. STATE.

Florida Supreme Court

February 23, 1923

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

Johnnie Williamson was convicted of manslaughter, and he brings error.

Reversed for new trial.

Syllabus by the Court

SYLLABUS

Evidence of conversation day after shooting, between accused and person shot, held inadmissible and prejudicial. In a prosecution for a homicide by shooting the admission of testimony of a witness as to a conversation between the defendant and the person shot on the day after the fatal shooting, in which conversation the mortally wounded person indicated resentment towards the defendant and also that he thought the shooting was unnecessary, was error, the statements by the decedent not being a part of the res gestae and not dying declarations; and such error was necessarily prejudicial to the defendant.

Mere separation of jury not ground for setting aside verdict unless accused prejudiced; burden of proof that separation of jury not prejudicial on state. The mere separation of jurors impaneled to try a capital case, from their fellows, without the attendance of an officer, although an irregularity, is not a sufficient cause for setting aside the verdict, if the court is satisfied that the prisoner has not sustained any injury from such separation. But where there has been an improper separation during such trial, if the verdict is against the prisoner, he is entitled to the benefit of a presumption that the irregularity has been prejudicial to him, and the burden of proof is upon the prosecution to show to the entire satisfaction of the court that the prisioner has suffered no injury by reason of the separation.

COUNSEL

J. B. Hodges and Guy Gillen, both of Lake City, for plaintiff in error.

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

OPINION

WHITFIELD J.

Upon an indictment charging murder in the first degree, Williamson was convicted of manslaughter and took writ of error.

The person who was fatally shot by the accused lived some weeks after being wounded. At the trial, a witness for the state testified that he was present the day after the shooting in a room where the wounded man was lying in bed, and the witness was then asked: 'What happened there?' The court over objections that it was no part of the res gestae and irrelevant and immaterial, permitted the witness to testify that the day after the shooting of the decedent, Clyde Hoyt the accused, John Williamson, went in the room where Clyde Hoyt was lying wounded and said, 'Clyde, you know that I had to do it, don't you?' and that 'Clyde said, 'no, you did not have to do it,' and John tried to shake hands with Clyde, and Clyde would not let him and told him to turn his hand loose.'

What the decedent, Clyde Hoyt, said to the accused the day after the shooting, was not a part of the res gestae. Clyde Hoyt was not under oath, and what he said was not a dying declaration but a voluntary statement of his view of the tragedy. It was not proper evidence on the issue that was to be determined by the jury, and was calculated to influence the jury to the prejudice of the accused. It was erroneously admitted in evidence and was harmful.

The record proper shows that at the trial the court made the following order:

'The taking of evidence was begun, and pending the taking of evidence the court charged the jury as to their conduct and demeanor and ordered said jury to not separate but to remain together, and placed said jury in charge of C. C. Berthea and E. N. Richards, sworn bailiffs, and ordered said jury to be present in the jury box, in charge of their bailiffs, at 9 o'clock Tuesday morning, May 2, 1922. The sheriff was ordered by the court to provide the jury with meals, lodging, and necessary comforts.'

See section 2789, Rev. Gen. Stats. 1920.

On a motion for new trial it was shown that the jurors violated the order of the court that they should 'not separate but remain together,' in that several of the jurors on two occassions, apparently without the consent or knowledge of the court or of defendant's counsel, left the other jurors and with a sworn bailiff went to store their automobiles for safety while they were on jury duty in the case; and that several of the jurors with a bailiff and with the consent of the trial judge, but without the knowledge or consent of the defendant or his counsel, went several miles to the home of one of the jurors on an...