Johnston v. State , 112 Fla. 189 ( 1933 )

At the threshold of this case, we are confronted with the question whether or not the trial court committed reversible error in denying the motion for change of venue, and if so, whether or not under the circumstances of this case this error was cured or waived by what subsequently transpired.

It was only after the final denial of the motion for change of venue, which was presented anew on the day of the trial, April 18th, 1932, together with additional evidence in support thereof, that the plaintiff in error withdrew his plea of not guilty and interposed a plea of guilty, which, under the statute, required the trial judge, without a jury, to proceed to take the testimony and determine the degree of the homicide, and pass sentence accordingly. The record indicates that it was because of the denial of his motion for change of venue that the plaintiff in error, believing that he could not obtain a fair and impartial trial before a jury at the time and place of the trial, decided to change his plea, as above stated, and thus forego his constitutional right to a jury trial, and leave it to the trial judge to determine, under the statute, the degree of his guilt. Thus the error in denying the motion was not waived.

It was on the afternoon of Easter Sunday, March 27, 1932, in the city of Lakeland, Florida, that two highly esteemed police officers were killed while in the discharge of their duty. This terrible occurrence naturally aroused a high degree of public indignation. This plaintiff in error was charged with the murder of one of these popular officers and Perry Acree was charged with the murder of the other. On March 28th, 1932, the Circuit Judge summoned the Grand Judy to convene the following day, and on that day, March 29, plaintiff in error was indicted. The Court recessed until April 2, at which time counsel for the defendant, Johnston, presented a motion for a change of venue and also a motion for continuance, both of which were overruled, and the defendant was arraigned and entered a plea of not guilty. The Court recessed until April 6th, motion for continuance to the October term was denied, and then the case was set for trial on the 18th day of April, 1932, when the motion for change of venue, together with additional evidence in support thereof, was again presented by counsel for the defendant, and, upon being denied by the Court, the defendant changed his plea as above stated.

The defendant's motion and the affidavits and evidence in support of same, in spite of the prosecution's traverse and evidence, shows a situation, which, under the previous decisions of this Court, entitled the defendant to a change of venue, or at least to the granting of the motion for postponement until the popular excitement had subsided.

Certain significant facts stand out, practically undisputed; the mob of two thousand or more which gathered around the city jail immediately after the defendant's incarceration on the afternoon of the homicide, demanding that the defendant be turned over to them; the address to the mob, made by a popular and influential citizen at the request of the Mayor, seeking to quell their excitement and to prevail upon them to let the law take its course; the calling out of the State Militia by the Governor at the request of the State Attorney, who guarded the defendant with machine guns from the evening of March 27th until the afternoon of March 28th; then the removal of the defendant under heavy guard to the county jail in Bartow, where the guard of State troops was again resumed; the guarding by armed men of the highways leading from Lakeland for the evident purpose of taking the defendant from the duly authorized officers of the law and wreaking mob violence upon him; the wide publicity which was given all this by the newspapers of the county; the great public indignation and hostility which were aroused, not only against the defendant, but even against the brave, young and inexperienced attorneys who undertook Johnston's defense; the widespread newspaper publicity, which continued up to the day of the trial; all of these are earmarks of a situation which, as the motion for change of venue well stated, made it practically and psychologically impossible to secure an impartial and unprejudiced jury in that county at the time of the trial.

The rights of society to protection from the lawless by the prompt and vigorous administration of the criminal laws, must be fully conceded, but the traditions of the Anglo Saxon race and the Constitution and laws of our State guarantee to all persons accused of crime, whether innocent or guilty, a fair and impartial trial. It is for this purpose that our Statutes providing for change of venue in proper cases were enacted. This was in our opinion a proper case for the application of those Statutes.

In Reed v. State, 94 Fla. 32, 113 So.2d 630, this Court said:

"It is not the speed or promptness of grand jury investigation and indictment which is likely to prejudice the case of a defendant or prevent him from having a fair and impartial trial before a jury of his peers. It is when the trial before the petit jury is forced upon him before he has had time to properly consult with his counsel and prepare his defense; or when compelled to go to trial so soon after the commission of the crime charged, in cases where great popular excitement and indignation have been aroused, as to make a calm, dignified, fair and impartial trial psychologically impossible — it is then that the accused has good grounds for objection and exception when his prayers for postponement and allowance of more time go unheeded by the trial court.

Again, in Atkins v. State, 100 Fla. 897, 130 So.2d 273, this Court held that:

"Applications for change of venue under our law, Sections 2670 and 2671, Revised General Statutes of Florida (Sections 4337 and 4338, Comp. Gen. Laws of 1927) are predicated on a well grounded 'fear' that it is impractical to obtain a fair trial and a qualified jury in the county where the crime occurred, or the action accrued. We do not understand the statute to mean that it must be conclusively shown that it is impossible to have a fair trial in the county where the venue is laid, but it is sufficient to show a reasonable apprehension that the defendant will not secure a fair and impartial trial or that the jury are under an influence inimical to the accused."

For these, and other reasons which we deem it unnecessary to discuss at this time, we think the judgment of the court below must be reversed.

Reversed and remanded.

TERRELL and ELLIS, J. J., concur.

WHITFIELD, and BUFORD, J. J., dissent.

DAVIS, C. J., not participating on final decision for reasons stated in attached statement filed herewith.