Citation Numbers： 134 So. 62, 101 Fla. 1421
Judges： ELLIS, J. —
Filed Date： 4/24/1931
Status： Precedential
Modified Date： 1/12/2023
This case is before the Court on its merits on a writ of error to the Circuit Court of Highlands County to review a judgment of conviction of William Raymond Carver of murder in the first degree with recommendation to mercy for which the sentence of life imprisonment was imposed and also upon petition for habeas corpus presented by the said William Raymond Carver praying he be allowed bail.
We find two questions presented by assignments of error, either of which might be determinative of the legality of the judgment. Assignment of error No. 25 was that the Court erred in holding that the juror Langford was a proper juror to sit in trial of the cause. The assignment is based on the 17th ground of the motion for a new trial which was as follows: *Page 1423
"Because one of the jurors, to-wit: G. N. Langford, concealed from counsel for the defendant the fact that he was present at the scene of the alleged homicide on the day when the homicide was alleged to have been committed and only a short time after the hour when the said homicide was alleged to have been committed; that he then and there had opportunity to see the bodies of the deceased and to talk with witnesses who have testified in the case and to form his own opinion in regard to the manner in which the said homicide occurred. The stenographer's record showing the questions that were propounded to the said Langford and his replies thereto are herein and hereby referred to and made a part of this motion; that had said Langford advised counsel for the defendant that he was present at the house where the bodies were found and where the homicide was alleged to have occurred upon the same day when said homicide occurred and shortly thereafter, and that he had had an opportunity to study the scene and to talk with witnesses who were then and there upon the premises, that said juror would not have been accepted by the defendant as a juror to try said cause. An affidavit of C. P. Covington is hereto attached and made a part of this motion for a new trial in support of the ground herein last above alleged."
The record shows that when Langford was examined as a prospective juror in this case he was asked if he knew anything about the case and he answered in effect that he knew nothing except that it had happened. It developed after the trial that Langford was at the scene of the homicide soon after it occurred; that he saw the dead bodies, talked with witnesses and was in position to have acquired knowledge of a great many of the facts surrounding the homicide. His answer in reply to questions propounded by counsel on examination was misleading. It was further *Page 1424 developed after the trial that Langford was quoted as having, prior to the trial and after the homicide, expressed an opinion as to the guilt of the accused. Langford denied having expressed an opinion.
Be this as it may, there is grave doubt in my mind as to whether or not Langford was a fair and impartial juror. Certain it is that he weighed the evidence of each witness in the light of knowledge and information which he acquired by a personal inspection and view of the premises and the bodies and from information which he received on the ground immediately after the homicide and he would have necessarily discredited any witness whose statement as to the existence or non-existence of physical facts did not agree with his recollection of such physical facts.
In this case the State relied exclusively upon circumstantial evidence for a conviction. The undisputed facts were that on the afternoon of the 2nd day of April, 1930, Mrs. Ruth Stapf Carver, her infant son a little less than three years of age and a negro by the name of Ben Whitehead were killed in the Carver home at Sebring in Highlands County, Florida. Mrs. Carver and the little boy were killed by blows from a blunt instrument, supposedly a hatchet, inflicted upon the head of each. The negro was killed by Carver with a pistol.
The State contends that Carver killed the negro with a pistol, then killed his wife and child with a hatchet and intimates that the motive behind the killings was that Carver might collect life insurance by reason of the death of his wife.
Should that theory be accepted, there is no motive whatever shown for the killing of the negro. Neither is there any motive, reason or excuse shown for the killing of the *Page 1425 little boy, an innocent child under three years of age. The record shows that Carver was married to his wife in the Fall of 1920 and that their association together as man and wife was most congenial; that both man and wife appeared to be happy and contented; that the attitude of Carver toward his wife and children was kind and considerate.
In fact, the record shows that Carver was a good provider and that he was a loving and devoted husband and an indulgent father. So far as the record shows, there was never any unpleasantness between Carver and his wife. This evidence must be given full weight because it comes from the uncles, aunts, mother and brother of the dead woman. The record shows that all of Mrs. Carver's people believed him to be innocent and incapable of having committed this atrocious crime. The fact that the jury recommended him to mercy is evidence that they were not entirely satisfied that he committed the crime.
Carver's story was that the negro, Ben Whitehead, was working around the house; that after the noon day meal he gave the negro some directions about some chores to be performed and he then went across the hall and lay down on a bed to take his customary afternoon nap; that his wife and little boy were in another room on the opposite side of the hall; that he was awakened by screams from his wife; that he immediately sprang up and went across the hall and saw his wife and baby on the floor and a negro standing over them with a weapon of some kind in his hand; that he turned and ran back to his room, got his pistol, returned and saw the negro at about the door of the room in which his wife and child were; that he shot four times at the negro. The negro fell. Carver went back to his room, put two more cartridges into his pistol, returned *Page 1426 in the hall and shot at the negro twice as he lay upon the floor.
There were two or maybe three wounds in the negro. The State contends there were only two. One was in the head about the center of the forehead; another was in the right breast. It is the contention of the State that the bullet striking the right breast went through the heart and came out under the left shoulder blade. As no autopsy was performed, it can not be certain that these two wounds, the one in the right breast and the one under the left shoulder were from the same bullet. That, however, is immaterial.
Carver states that after he shot the negro on the floor and knew he was dead, he went into the room where his wife and child were lying; that he tried to raise his wife up, was convinced that she was dying; that he wet a towel and put it on the little boy's head, then went to a telephone and called police, doctors and neighbors.
On the day of the tragedy, during the morning hours, one Louis Evers went to the Carver home and observed that Mrs. Carver appeared to be frightened. During the same morning one E. C. Alsmeyer went to the Carver home and while there Mrs. Carver had a conversation with him in regard to the negro Whitehead. The record shows the following:
*Page 1427"Q. All right, state the conversation, Mr. Alsmeyer.
A. Mrs. Carver was showing me some plants and flowers that were in bloom, in this lath-house which is southwest of their home — attached to the garage. And this negro was about 20 feet away from there, leaning on the hoe-handle, and watching. And she spoke: and she says: 'Look at that nigger, how he sizes me up. I am afraid of him'. And I answered, and I says, 'He is not going to do anything while I'm here'. 'He is not going to do anything or hurt you while I'm here.
*Page 1428Q. Now, did she say further what the negro had done?
A. And I spoke up and I says 'Why?' And she says, 'I told him yesterday that he was the laziest good-for-nothing negro I ever saw'. And I do not remember whether she said 'He went for me' or 'made for me' but my impression now is that she said "He made for me then; I am afraid of him'.
Q. Either she said 'he made for me' or 'he went for me'?
A. Yes sir.
BY MR. BURTON:
Q. Mr. Alsmeyer, was Mr. Carver present when this conversation took place.
A. No sir.
Q. Did you inform Mr. Carver of that conversation?
A. No sir.
Q. Did Mrs. Carver inform Mr. Carver of that conversation, in your presence?
A. No sir.
Q. Now, you nor Mrs. Carver, so far as you know, informed him of that conversation?
A. No sir.
MR. BELL; You left before Mr. Carver came home didn't you Mr. Alsmeyer?
A. Yes sir.
MR. BELL: Mr. Carver was away from home?
A. Yes sir.
Q. Just what did she say to that negro?
A. She said, 'I told him yesterday that he was the laziest good-for-nothing negro I _____ nigger I ever saw'.
Q. Yes; then what did she say?
A. 'He made for me' or 'went for me'; I do not remember just the words.
Q. Then what did she say?
A. I said 'Well, he is not going to do anything of that kind while I am around.' "
I have gone over the transcript of the record, including the bill of exceptions which includes the evidence, very carefully and have found no fact proven which is not just as consistent with Carver's innocence as it is with his guilt. The State has laid great stress on the fact that some blood was on Carver's shirt, both on the front and back. The record shows that Carver went to his wife and tried to raise her up and tried to administer to her after the negro was killed and at that time she was able to move her hands and throw them about; that she was bleeding profusely. She continued to move her hands until after some other people arrived upon the scene. I find no suspicious circumstances in the fact that his shirt had blood on it. The great wonder is that there was not more blood than was there if he bent over her, as he stated he did, and tried to minister to her suffering when she was in the throes of death. Every fact which was proven, or which the evidence of the State tended to prove could be absolutely true and at the same time be entirely consistent with the story told by Carver as to how the homicide occurred. It is not contended that Carver was mentally deranged and yet it is contended that he killed the negro Whitehead before killing his wife and child without provocation or excuse; that he killed his wife with a different weapon from that used to kill the negro by beating her over the head with a hatchet in a most brutal and inhuman manner and it is insinuated that he committed this murder in the hope of collecting a Ten Thousand ($10,000) Dollar insurance policy. It is not shown that he was in any great need of money. It is further contended that he then, without any motive, provocation or excuse, killed his little boy, his only son to whom he was thoroughly *Page 1429 devoted and was not old enough to be a witness for or against him.
This Court has repeatedly held that "Circumstantial evidence may be relied upon to establish guilt; but the value of this evidence consists in the conclusive nature and tendency of the circumstances relied upon; they must not only be consistent with guilt but must be inconsistent with innocence; that the facts established a strong probability of guilt is not sufficient." Whetstone vs. State,
I think that the evidence in this case not only fails to meet the above stated rule but that many of the facts relied upon by the State to establish the guilt of Carver are inconsistent with his guilt. It appears to me that when the entire record is considered facts are thereby established which make it apparent that there is a greater probability that Ruth Carver was killed with an old hatchet wrapped up in a sock by the negro Ben Whitehead who died with some of her beads and other jewelry protruding from his pocket than that she was killed by him who had for ten years been her devoted husband and provider and the father of her children.
For the reasons stated, I think the judgment should be reversed.