I agree to the conclusion reached by Mr. Justice BUFORD. I do not agree with Mr. Chief Justice DAVIS in the major premise of his dissenting opinion, which is in substance that the constitutional right to an opportunity for preparing one's defense in a capital case is violated ipso facto when the accused is put on trial seven days after the commission of the alleged offense, or four days after the indictment was returned.
I think the cases cited in his opinion do not support the proposition.
In Scott v. State, 101 Fla. 250, 134 Sou. Rep. 50, the indictment was returned at 2 o'clock P. M. on September 9, 1930, and the defendant was arraigned at 9 o'clock A. M. on September 10, 1930, and the trial was set for September 12, 1930. The crime was alleged to have been committed in Gulf County, the accused was confined in the Bay County jail, and his attorneys, whom he had employed, resided in Jackson County at Marianna, sixty miles away. The court said in its opinion that it did "not take the position that one
charged with crime, capital or otherwise, may not be tried promptly after the indictment is presented." The court merely held that in the circumstances of that case the time which the accused had in which to prepare his defense was not reasonable.
In the case of Cristie v. State, 94 Fla. 469, 114 Sou. Rep. 450, the crime was alleged to have been committed in Orange County on October 15, 1926, the accused was arrested the same day, lodged in jail, and on October 18th was removed to the jail in Hillsborough County. He had engaged counsel in Orange County. He was returned to Orange County on the afternoon of October 30th and placed on trial November 1, 1926, on which day he was first arraigned. He was a stranger in Orange County and he relied upon evidence to show the character of himself and the prosecutrix to support his defense of consent. The difficulty of procuring the evidence both as to the character of the accused, who was a stranger, and the character of the prosecutrix, who had lived in many different places in three different States within six years, was twenty-four years old and had lived in Orlando one year, and the inconvenience counsel were put to in consulting with the accused, were the circumstances which the court deemed sufficient to require a longer time than two days after the return of the indictment in which to prepare for the defense.
In the case of Anderson v. State, 92 Fla. 477, 110 Sou. Rep. 250, the State relied upon circumstantial evidence solely to support the charge. The indictment was presented on May 11th, the accused was arraigned on the 12th day of May, and the trial was set for the 19th of the same month. The defense in that case was that there was a third party in the automobile which the deceased drove. The name of such third party was given. The driver of the automobile was killed at a point south of Ocala. The machine was
driven that morning from Jacksonville with the accused as a passenger, and, as he claimed, with another person as passenger also. The automobile in its route to the point where the driver was killed passed through Lake City, Gainesville and Ocala. To have established the defense of the accused would have required investigations in Jacksonville, Lake City, Gainesville and Ocala. The court deemed that six days in which to make such investigations was not a reasonable time. The judgment was reversed because certain evidence in behalf of the State was held to be improper over objection by the accused.
In the Coker case, 82 Fla. 5, 89 Sou. Rep. 222, the indictment was returned on December 20, 1920, and immediately upon its presentation in court the accused was required to plead to it and go at once upon trial notwithstanding he had requested a copy of the indictment and had been denied in violation of the Declaration of Rights, Sec. 11, Constitution 1885, at least so the record disclosed. For that error the judgment was reversed.*
I am of the opinion that the circumstances in this case do not bring it within the principle announced in the cases cited.
* After that case was decided it was stated by counsel for the State, or persons who were friends of his Honor George W. Whitehurst, Judge of the court in which the cause was tried, that the record did not accurately recite the events as they actually occurred; that Judge Whitehurst, most generally known in the State as an upright, conscientious and able jurist, had not in fact acted in the manner in which the record made it appear that he did and that the accused did in fact have a copy of the indictment and was allowed reasonable time in which to prepare his defense. This Court, however, was powerless to do aught after its jurisdiction was lost and its decision made on the record as presented.