Lowman v. State , 80 Fla. 18 ( 1920 )

Whitfield, J.

Upon an indictment charging murder in the first degree in Hernando County, Florida, by fatally shooting Ben. T. Harrell, “unlawfully and from a premeditated design to effect the death of the said Ben T. Harrell,” the' plaintiffs in error were convicted of murder in the first degree with a recommendation to mercy, and. took writ of error to a judgment imposing a life sentence.

It is contended here that “no venue whatever” was proven; that the court erred in admitting in evidence “the so-called dying declaration of Ben T. Harrell,” the deceased, and that the motion for new trial was erroneously denied in thát it was shown “thát the defendants A. Irving Lowman and Floyd Braswell were absent from the court room áhd out of the hearing of the trial of said cause during a material part bf the proceeding of said cause.”

Where the evidence does not expressly lb cate the crime as having- been committed in tile county charged in the indictment, but there are in the evidence references to various localities and landmarks at or near the scene of tlie crime, known by or probably familiar to the jury, and from which they may have reasonably concluded that the offense was committed in the county alleged, it is sufficient proof of venue. Duncan v. State, 29 Fla. 439, 10 South. Rep. 815; McCune v. State, 42 Fla. 192, 27 South. Rep. 867; Leslie v. State ,35 Fla. 184, 17 South. Rep. 559; Smith v. State, 29 Fla. 408, 10 South. Rep. 894; Andrews v. State 21, Fla. 598; Bryan v. State, 19 Fla. 864; Hopkins v. State, 52 Fla. 39, 42 South. Rep. 52; 16 C. J. 769.

If the proof of venue does not come within the rule above announced, it will be insufficient. Warrace v. State, 27 Fla. 362, 8 South. Rep. 748; McKinnie v. State, 44 Fla. 143, 32 South. Rep. 786; Smith v. State, 42 Fla. 236, 27 South. Rep. 868; Cook v. State, 20 Fla. 802; Robinson v. State, 20 Fla. 804; Evans v. State, 17 Fla. 192; McCoy v. State, 17 Fla. 193.

Venue need not be established beyond a reasonable doubt. If the evidence raises a violent presumption that the offense was committed within the county, or if the evidence refers to localities and landmarks at or near the scene of the alleged offense, known or probably familiar to the jury, from which they may reasonably infer that the offense was committed in the county, it will be suffident. Warrace v. State, 27 Fla. 362, 8 South. Rep. 748; Andrews v. State, 21 Fla. 598.

In this case there is testimony that the homicide was committed at a place or town called Istachatta, which the trial court and the jury must have knpwn and this court knows is in Hernando County. See Howard v. State, 172 Ala. 402, 55 South. Rep. 255, 34 L. R. A. (N. S.) 990; Dupree v. State, 148 Ala. 620, 42 South. Rep. 1004; 16 C. J. 770; Commonwealth v. Kaiser, 184 Pa. St. 493, 39 Atl. Rep. 299. It is not material whether Istachatta be incorporated or not; it is a village and a station on a railroad, with a postoffice, in Hernando County, Florida. See 15 R. C. L. 1083, 1085, 1118; Central Railroad & Banking Co. v. Gamble, 77 Ga. 584, 3 S. E. Rep. 287; Smitha v. Flournoy, 47 Ala. 345. The venue was sufficiently shown. Leslie v. State, 35 Fla. 184, 17 South Rep. 559.

A witness for the State testified that he saw the deceased the morning after he was shot, and that “I asked him if he didn’t think he was getting along pretty well, and would get over it, and would be all right in a short time, and he said, ‘No, they have got me. I can’t get over it.’ ” “I asked him again; perhaps he wasn’t as badly wounded as he thought he was, and he repeated about the same, he first said: he says, ‘They have got me; I can’t get over it; I can’t recover.’” “Did lie state to you in so many words, or to that effect that he was expecting immediate death — right now? A. No; he didn’t say that in those words; no sir. Q. Did he say anything to you that he himself had no hope of recovery? A. He didn’t use those words. Q. He simply said, ‘They have got me?’ A. Yes. Q. And ‘I don’t expect to get well;’ ‘I don’t expect to recover?’ A. ‘I can’t live.’ Q. ‘I can’t live?’' A. He used on One occasion. Q. Bnt did lie say a single word that he expected the result to be immediate? A. He didn’t say that.”

•‘In the case of Lester v. State, 37 Fla. 382, 20 South. Rep. 232, it was held that: ‘To render dying declarations admissible, the judge must be fully satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable, and that he entertained no hope of recovery. This absence of all hope of recovery, and appreciation by the deceased of his speedy and inevitable death is a preliminary foundation that must always be laid to make such declarations admissible. It is a mixed question of law and fact for the judge to decide before permitting the introduction of the declaration itself. It is not necessary that such preliminary test should consist of' express utterances, but it may be gathered from any circumstances or from all the circumstances of the case.’ Dixon v. State, 13 Fla. 636; Richard v. State, 42 Fla. 528, 29 South. Rep. 413; Clemmons v. State, 43 Fla. 200, 30 South. Rep. 699; Gardner v. State, 55 Fla. 25, 45 South. Rep. 1028.”

Guided by these authorities and the cases therein approvingly cited, we do not think the court erred in admitting the declarations of the deceased in this case. Copeland v. State, 58 Fla. 26, 50 South. Rep. 621; Newton v. State, 51 Fla. 82, 41 South. Rep. 19; Richard v. State, 42 Fla. 528, 29 South. Rep. 413; Clemmons v. State, 43 Fla. 200, 30 South. Rep. 699.

Grounds of the motion for new trial assert that the defendants were at different times each voluntarily absent from the court room for a few minutes during the trial and affidavit's in support of the assertions were filed, In denying the motion for new trial the court must have regarded the asserted brief voluntary absences of the defendants from the court room during the trial as not harmful to the defendants, or else that he held the affiants to be mistaken in a matter that he was cognizant of. It is suggested for the State that the matter cannot properly be presented by affidavits after the trial. Van Houton v. People, 22 Colo. 53, 57, 43 P. 137. If the trial court had observed or had been advised of an absence of the defendants or either of them from the court room during the trial, he doubtless would have made the bill of exceptions so state as a part of the proceedings in pais. In this case we will not hold that the matter was not properly presented by motion for new trial supported by affidavits. The State presented no counter affidavits.

An affidavit , of A. Irving Lowman states “that during the trial of said case and while the jury was being examined as to its qualifications to try said cause, and while a prospective juror was being examined as to his qualifications to sit in said cause, that this affiant being-anxious to learn something if possible concerning the juror being so examined and without realizing that he was violating any rule of said court, this affiant got up from his seat back of his counsel and inside of the bar rail of said court, and without saying, anything to any of his attorneys, walked out of the northeast door of the court room to make such inquiry. Although this affiant does know that the examination of said juror was going-on as he, this affiant, passed outside of said door; that this affiant was absent from said court room some five or ten minutes, the exact time of his absence this affiant does not know; that upon the return of this affiant to the court room the said examination had evidently ceased as there was no questions being asked this particular juror. This affiant further says on oath that this particular juror, wlio was examined as to his qualifications in the absence of this affiant, was accepted pn sqid jury and wqs one of t|ie twelye jurors that tried thjs affiant and his co-defendant and found them guilty of mqrder in the first degree as above set forth.”

By affidavit J. C. Havant stated “that he was in attendance upon the said court during the present week while the trial of the case of the State of Florida vs. A. Irving Lowman and Floyd Braswell charged with the murder of Ben T. Harrell was being tried; that he was especially present in said court while the jury to try said case was being examined as to their qualifications for the trial of the same; that he noticed particularly while one juror was being examined as to his qualifications and the same was taking place in the progress of said trial, the defendant A. Irving Lowman got up from his seat in the court room and went out of the room and was gone several minutes before returning to the court room, and while(said defendant A. Irving Lowman was absent' from the court room and beyond the hearing of the proceedings then going on, the examination of said juror on his qualifications continued, and this affiant knows that a large part of the examination of said juror took place in the absence of the said defendant A. Irving Lowman.”

Floyd Braswell by affidavit stated: “That he is suffering', and has been suffering for a considerable time, with a very bad case of kidney trouble; that at times said disease is very acute and necessitates his going to a tiolet and relieving himself eveyy few minutes, and that it is impossible for thjs affiant to avoid so doing. That during the trial of the above named cause, in which this affiant was a defendant as above set forth, he many times had to thus go out of the coprt room to relipve hiinsejf; that lie particularly remembers on one occasion while a State witness was being examined by the State’s attorney in said case, this affiant was compelled to leave the court room and relieve himself as aforesaid; that' not realizing that he was violating any pf the rules pf the court, and without speaking to his counsel pr any one else, he got up frpin his place inside the bar rail of said court and went out of the court room through q door near the northeast' corner of said court room, which door was closed behind him; that he from that place went through a hall to the toilet in the northwest corner of said building, but entirely outside of and beyond the court room; that he was there for several minutes and after relieving himself returned to the court room and resumed his seat.”

An affidavit by Aaron H. Rvals states “that during the said trial of these defendants in said cause and in said court during the present week, and while a witness for the State was being examined, this affiant saw the defendant Floyd Braswell get up from his seat inside oí the bar rail of said court and walk out of the court room to the north of the court building and saw a door through which he went out close behind him. That this affiant noticed that the examination of said witness was not stopped upon the absence of said' defendant from the court room as aforesaid, but such examination of said witness continued right on in the absence of said defendant Floyd Braswell; that the said Floyd Braswell was absent from the room several minutes and during all of the time that he was so absent the examination of said State witness was continued by the State’s attorney.”

As the affidavits were not controverted, and as the motion for new trial was overruled without stating the reasons therefor, it will be assumed that the court regarded the asserted absences of the defendant's from the court rooni for a few minutes during the trial as not harmful to the defendants; rather than that the court held the affidavits to be untrue as to the- absence from the court room of the defendants as stated. Was the voluntary absence of the defendants from the court room under the circumstances stated harmful error, or was it such a violation of law as t'o require a reversal of the judgment of conviction fully sustaned by the evidence?

The Constitution ordains “In all criminal prosecutions the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed, and shall be heard by himself, or counsel, or both, t'o demand the nature and cause of the accusation against him, to meet the witnesses against him face to face, and have compulsory process for the attendance of witnesses in his favor, and shall be furnished with a copy of the indictment against him.” Sec. 11, Declaration of Rights.

Section 3977, General Statutes, 1906, provides: “No person prosecuted for a felony shall be tried unless personally present during the trial.”

Chapter 6223, Acts of 1911, is as follows: “No judgment shall be set aside or reversed, or new trial granted by any court of the State of Florida in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case, it' shall appear that the error complained of has resulted in a miscarriage of justice. This Act shall be liberally construed.”

In Gladden v. State, 12 Fla. 562, text 577, this court by Mr. Justice Westcott, said: “We will consider one” of the grounds presented in the motion for new trial “which was the absence of the prisoner from the court for some minutes three several times during the progress of the trial — at one time when one of the State witnesses was being examined, at another time when a witness for the defense was being examined, and a third time during the argument of counsel. The absence was. voluntary, but without any express waiver of his right to be present.

“It is unnecessary for us to determine whether the prisoner can waive his right to be present during the trial, or whether a simple voluntary absence upon his part can be held to be a waiver of his constitutional right, and authorize the State to proceed in his absence. These questions have been settled in this State.

“This court has laid down the rule very broadly, and has, perhaps, extended it' beyond the views of the courts of some other States.

“In Holton vs. State, 2 Fla. 500, the court say: ‘During the trial of a capital case (the whole trial) the prisoner has a right to be and must be present. No steps can be taken by the court in the trial of the catise in his absence. The prisoner charged wrnst be present in court to make Ms objections to mvy and every step that may be taken which he may deem illegal.’ ”

In Irvin v. State, 19 Fla. 872, text 894, in which Judge Westcott participated, it is said: “We think the rule should be extended no further.” ■ v '

In Morey v. State, 72 Fla. 45, 72 South. Rep 490, it is said: “Upon the trial of an indictment charging the defendant with the commission of a-capital offense, it is important that the defendant shoulcj. be prpsent at every stage of the tri^l, inc'liiding the qrgunient of counsel.”

In this case the charge was a capital offense. The defendants had been out on bail and apparently were not in the actual custody of an officer during the trial. The momentary absences from the court room were voluntary, and there is nothing to indicate that any harm could have resulted to the defendants or either of them by the voluntary absence of the defendant Lowman from the court room for a few minutes during the examination of a juror as to his qualifications or by the voluntary absence of the defendant Braswell from the court room for a few minutes during the examination pf a State witness.

The Constitution secures to a defendant a right to “an impartial trial” anl “to meet the witnesses against him face to face,” but it does not expressly require a defendant to be present during the entire time of the trial. A rule of procedure enforced by the courts has required the personal presence of the defendant during the whole period of the trial as stated in the Molton and Morey cases, supra. See Sherrod v. State, 93 Miss. 774, 47 South. Rep. 554; State v. Kelly, 97 N. C. 404, 2 S. E. Rep. 185.

The courts hold that the general right of the defendant to be present at every material step taken in his trial for a capital offense cannot be waived by him. In some States statutes authorize the defendant to waive his right to be present at least at times during his trial, even for a capital offense. And such statutes are sustained since there - are no constitutional provisions with which they conflict'. Thomas v. State, 117 Miss. 532, 78 South. Rpp. 147; 16 C. J. 817. See also Davidson v. State, 198 Ark. 191, 158 S. W. Rep. 1103.

A temporary absehce from the court loom, for a short time during the trial, even in a capital casé, has been held nor td be such an invasion of defendant’s substantial rights as to be ground for á reversal or for a new trial. State v. Rubaka, 82 Conn. 59, 72 Atl. Rep. 566; 16 C. J. 818 and notes. See also State v. Gonce, 87 Mo. 627; S R. C. L. 91; Diax v. United States, 223 U. S. 442; 32 Sup. Ct. Rep. 250. See also Russel v. State, 65 Fla. 312, 61 South. Rep. 624; Hite v. Commonwealth, 14 Ky. Law 308, 20 S. W. Rep. 217; Meece v. Commonwealth, 78 Ky. 586; Howard v. State of Kentucky, 200 U. S. 164, text 175, 26 Sup. Ct. Rep. 189; Frank v. Mangum, 237 U. S. 309 85 Sup. Ct. Rep. 582; State v. Slorah, — Mo., — 106 Atl. Rep. 768, 4 A. L. R, 1256; Frank v. State, 142 Ga. 741, 83 S. E. Rep. 645; Ann. Cas. 1913C 1146 Notes.

The statute above quoted to the effect no persor charged with a felony shall be tried unless personally present during the trial, is for the benefit of the defendant, and the right so given may be waivfed. See People v. Bragle, 88 N. Y. 585; Cawthon v. State, 119 Ga. 395, 46 S. E. Rep. 897; People v. Bush, 68 Cal. 623, 10 Pac. Rep. 169.

As the defendants were represented by counsel and were personally present at all other stages of the trial, their voluntary absence for a few moments from the court room should not under the circumstances render tile trial invalid, even if erroneous; and under the statute of 1911, above quoted, the judgment should not be reversed or a new trial granted for an error of procedure that is harmless on the evidence where no right secured by the constitution that could not be waived has been invaded by the prosecution. There is no claim that the defendants did not have a jury of their choice under the law or that the trial was in every way fair and impartial.

The evidence amply sustains the verdict and there is no suggestion of the possibility of harm to the defendants or either of them by their own. voluntary and momentary absence from the court room during the trial. State v. Rubaka, 82 Conn. 59, 72 Atl. Rep. 566.

The charge in this case is a capital offense, but the Constitution does not expressly require the presence of the defendants in the court room' during the whole time of their trial for even a capital offense, and as the defendants met the witnesses against them face to face and had an impartial jury, and as the absence of the defendants from the court room was voluntary and for only a few moments, and as no harm to either of them seems possible and no harm is claimed to have resulted to either of them from their voluntary absence, the constitutional requirements have been complied with. The statutory right to be personally present during the trial has not been violated though the right may have been waived by the voluntary act of the defendants; and the statute forbidding new trials for harmless errors should be applied when no fundamental rights are thereby violated, the evidence fully sustaining the verdict.' See Doyle v. Commonwealth (Ky.), 37 S. W. Rep. 153.

In this case there was-the voluntary act of a normal man in going from the court room where he was being tried for the crime of murder, into another toohi in the building and there remaining a few minutes for purposes of his own desire or convenience, while the juror was being examined on his voii dire, or while a witness for the State was being examined, the defendant being represented by counsel, when it does not appear and is not claimed that any disadvantage or harm to the defendant could have resulted from his voluntary and temporary absence from the court room. To hold that this is a denial to the defendant of his organic rights “to be heard by himself or counsel, or both, to demand the nature and cause of' the accusation against him, to meet the witnesses against, him face to face” and not to “be deprived of life or liberty without due process of law” and to “the equal protection of the laws,” or a denial of the defendant’s statutory or common law right to be personally present “during the trial” or at every stage of or step taken in his trial for a felony, is to put vain technicalities above the substantial requirements of justice and security to the defendant, and t'o impair the integrity and power of the courts in administering the law and in securing to the defendant all of his rights in the premises.

Judgment affirmed.

West, J., concurs. Ellis, J., concurs in the conclusion. Brownb, C. J. and Taylor, J., dissent on the question of absence from court room of the defendants in a trial for a capital offense.