Davis v. State

Cockrell, J.

Math Davis, B. M. Franklin and Ben McDaniel were jointly indicted for the murder of Eunie Johnson. They were all convicted of murder in the second degree and sentenced to life imprisonment.

The evidence for the State was largely circumstantial. The theory of the State was that these white men went to the home of the negro Johnson, represented1 that they were deputy-sheriffs with a warrant for his arrest,-enticed him away from his home, then shot and disemboweled him, cut off a finger and an ear and then hid his body in a small stream. The homicide took place while the court was in session and the indictment and conviction followed promptly.

The testimony placed these men near the Johnson home under suspicious circumstances about the time that an unidentified man went to the house and called Johnson to the door. Johnson’s wife was in the house at that time and was permitted to testify that this man represented himself to be Cayson, a deputy sheriff, and further that there were two other men with him with a warrant for Johnson’s arrest. Johnson dressed and went off with this man. His wife saw but the one man — it was at night and she did not recognize him, nor did she see her husband again. His body was found the next day.

It is objected that the verbal statement of this unidentified man was improperly admitted because it was not shown that any of these plaintiffs in error were present. It is clear that if the State’s theory be correct, that this was but the initial step by some one in the conspiracy, and the inability of this negro woman to identify with certainty which one it was does not destroy the admissibility of the evidence. See Sumpter v. State, 45 Fla. 106, 33 South. Rep. 981. The representations or statements did not in the remotest degree tend to identify these plaintiffs in error as being in the plot to decoy Johnson from his home. The only names mentioned were those of two deputy sheriffs presumably well known in the locality, and the evidence was proper to show the plot and to explain why Johnson, without demurring, got up, dressed himself and left his home peacefully under the assumed protection of the law. We find no error here.

. A single error is assigned upon tlie refusal to give thirteen separate instructions. We are, under repeated rulings of this court, compelled to go no further than to ascertain that one of these separate instructions was properly refused. Charles v. State, 58 Fla. 17, 50' South. Rep.-419. The first special instruction refused reads: “It is the duty of each individual juror to be satisfied beyond a reasonable doubt of the correctness of any verdict of guilt, and if, after a fair and free conference and consultation with his fellows on the evidence, and an individual juror has a reasonable doubt as to the defendant's guilt or the guilt of either of them, it is the duty of such juror under his oath to retain such doubt and to refuse to concur in any verdict of guilt, while he has such reasonable doubt.” The vice in this instruction is obvious. It compelled a mistrial as to all three of the accused if one individual entertained a doubt as to the guilt of one only, and moreover we have disapproved the policy of thus encouraging the individual juror to stand out against the views of his fellows. Baldwin v. State, 46 Fla. 115, 35 South. Rep. 220; Cook v. State, 46 Fla. 20, 35 South. Rep. 665; McCall v. State, 55 Fla. 109; Ayers v. State, 62 Fla. 14.

In the oral argument before this court the plaintiffs in error sought to amend this assignment of error and to confine it to the refusal to give one specific charge as to the quantum of proof when the defense of an alibi is offered. That instruction, however, was incorrect in that it required an acquittal of all three defendants, when the nearest approach in the testimony tending to establish an alibi was offered only as to one of the defendants. Upon the evidence and the other charges given, we feel reasonably certain tbát the jury gave this defendant whatever consideration he may have been entitled to on this point.

There remains but the assignment upon the alleged insufficiency of the evidence to support the verdict. Though the evidence be circumstantial, in the sense that no eye-witness actually saw the killing, a careful and painstaking examination justifies this court in upholding the Circuit Judge in refusing to set aside the verdict upon the grounds urged. The lack of motive directed against the particular negro so slain and mutilated but emphasizes the atrocity of the crime, and the judgment and sentence will be affirmed.

Taylor, C. J., and Shackleford and Whitfield, JJ., concur.