Young v. State , 85 Fla. 348 ( 1923 )

Ellis, J.

In June, 1921, Herman Young was indicted for the murder of Henry B. Driggers. The offense was alleged to have been committed in Hilsborough County on April 2nd, 1921. Hallie J. H. Ellis, Granville Ellis and William H. Young, the plaintiff in error, were charged in the indictment to have been present aiding and abetting the commission of the murder. The plaintiff in error pleaded not guilty. A severance was granted upon motion of the State Attorney and Young was placed on trial April 25th, 1922.

The jury returned a verdict of manslaughter and judgment and sentence were entered against him. He seeks to reverse the judgment on writ of error.

At the very threshold of the case the point is presented that the plaintiff in error was denied a fair trial because a certain venireman called to serve as a juror was held by the court to be qualified as an impartial person over the defendant’s objection that it appeared from the answers of the venireman, to the questions propounded by the court and its authority as to his qualifications, that he was not an impartial person, and therefore not such a person as is contemplated by the Constitution shall serve as a juror in the trial of a felony.

The venireman, who ivas named T. T. Graham, admitted upon his voir dire examination that he had “formed or expressed” an opinion as to the guilt or innocence of the accused. That it -would require evidence to remove the opinion he had formed, which he would hold to unless the evidence changed it. He could not say whether his opinion, formed from newspaper articles purporting to give an account of the transaction, would readily yield to the evidence adduced upon the trial. He afterwards said it would not yield readily to the evidence, that is, “easily” yield. That his opinion was “fixed” so far as he knew.' That he was “open to arbitration.” He explained that phrase as meaning “open to conviction if he was wrong.” That he would “have'to be shown.” That his position would be an embarrassing one. The proposed juror’s answers appeared to vacillate between bias and the absence of it, certainty and the lack" of it as to the character of his opinion, whether it was fixed or not, would or would not yield easily or readily to the evidence according as he was questioned by the court, the State Attorney or the defendant’s counsel.

A person so uncertain of his mental attitude toward another on trial upon a grave and serious charge; so doubtful as to whether a prejudgment by him would influence his deliberations as a juror; who forms an opinion concerning the innocence or guilt of the accused upon a newspaper account of the alleged crime; whose opinion is fixed and would require to be -“shown” that such opinion is wrong cannot be said to be an impartial juror should he be chosen to serve as one.

But the man did not serve as a juror nor does the record show that the defendant exhausted one of his peremptory challenges in excluding the venireman from the panel. But the record does show that the defendant exhausted his full quota of ten peremptory challenges.

The proposed juror was challenged for cause by the defendant and the challenge was not sustained by the court who held that the venireman was qualified. Exception was duly taken to this ruling and it is the basis of the first assignment of error.

The record does not disclose that the twelve persons who served as jurors in the case were partial nor that any one of them was not an impartial juror. So far as the record discloses to the contrary the defendant obtained a trial by an impartial jury.

The right secured by the statute to a person on trial for a capital offence to challenge peremptorily ten persons tendered by the State as jurors to try the case, is a right that the defendant may waive. He is not bound to exhaust his full quota of challenges. The purpose is that there may be full assurance of the constitutional guaranty of a trial by an impartial jury. If the defendant is wrongfully required to use one of these ten challenges upon a person tendered as a juror, who should have been excused for cause, and exhausts his full quota of challenges harmful error is undoubtedly committed. See Mathis v. State, 45 Fla. 46, 34 South. Rep. 287. But if the person tendered is held to be qualified but does not serve and the record does not show that the defendant used one of his peremptory challenges, all of which were exhausted; in excusing the prejudiced venireman, can it be said that harmful error has been made to appear? See Green v. State, 40 Fla. 191, 23 South. Rep. 851.

It is the duty of a party complaining in an appellate court of the judgment of a lower court that it was erroneous and was obtained by the denial to him of rights to which he was entitled, to make such error clearly appear to the court to which he appeals, if in truth such error exists. All presumptions are in favor of the correctness of the judgment sought to be set aside. The right to challenge veniremen peremptorily is a right to reject. If a venireman who is unqualified because not impartial is tendered by the State, but does not serve as a juror, it does not follow that the defendant challenged him peremptorily, even though it does appear that the defendant exhausted his quota of peremptory challenges. To hold otherwise it would have to be presumed in aid of the contention that the judgment was erroneous, that the objectionable venireman was challenged by the defendant, who was thereby wrongfully obliged to use a' peremptory challenge.

But that presumption cannot be invoked. The error, if any exists rendering the judgment bad, consists not in overruling the challenge for cause, but in overruling the challenge for cause and permitting the juror to serve or forcing the defendant to use one of his peremptory challenges and exhausting by him of his full quota of challenges when the jury is selected. Unless that is the situation, no injury resulted from the court’s ruling. There was no harmful error. .

This view is in harmony with the decisions of this court, none of which however decide the exact point, that the defendant must use one of his peremptory challenges in excusing the objectionable venireman and must have exhausted his full quota of such challenges when the jury is finally selected.

From anything appearing in the record to the contrary, the defendant had exhausted his peremptory challenges when the objectionable veniremen was tendered. If such was the case the defendant was not injured by the court’s ruling because the veniremen did hot in fact serve. The record does not show that the jury which was finally selected and tried the issue "was incompetént or biased. In the absence of such showing the presumption exists that it was an impartial jury and that is all the defendant can demand if he has not been compelled to exhaust one of his peremptory challenges in excusing a venireman unqualified to serve and has. no unused peremptory • challenges left when the panel is formed. See 16 R. C. L. 291; McRae v. State, 62 Fla. 74, 57 South. Rep. 348.

The McRae case definitely holds that the action of the court in holding a juror to be qualified over defendant’s objection works no injury to the accused if the objectionable venireman does not serve, even though the accused exhausted his statutory number of peremptory challenges, when it does not also appear that any objectionable juror was selected after the defendant’s challenges were exhausted. The reason given for the rule is that the accused has a right to an impartial jury but is not entitled to any particular persons as jurors.

In a ease where an objectionable juror is challenged by the defendant for cause and the court wrongfully overrules the challenge and the defendant uses one of his peremptory challenges to excuse the objectionable venireman, the record should show that the jury finally impanelled contained at least one juror objectionable to the defendant, who sought to excuse him peremptorily but the challenge was overruled.

The first assignment of error is not sustained.

During the trial of the cause R. F. Johnson, court reporter and stenographer, was called as a witness in behalf of the State. He identified a certain document as the stenographic report reduced to writing of the testimony of Dr. H. O. Snow which was given by him on a former trial of the four persons, including the defendant, indicted for the murder of Henry B. Driggers.

The document was offered by the State and read in evidence over the defendant’s objection. The testimony was in substance that Dr. Snow, who was county physician, in company with other officials and in presence of the sexton of the cemetery exhumed the body of H. B. Driggers about a week after it had been buried and examined it. The result of the examination being the discovery of a bullet wound in the back of the deceased and a bullet just under the skin of the chest about two inches to the left of the right nipple. The bullet was removed and identified by the witness. There was also discovered a wound under the right knee ranging from the back toward the front. The wound was a small one. This evidence was offered because Dr. Snow for whom a subpoena had been issued was out of the State when the subpoena was issued.

During the trial Dr. Snow appeared and gave, in person, his testimony which in substance was the same as that given upon the former trial. Upon cross examination he said that the bullet removed from the dead man’s breast “ranged to the left from the place it entered.”

The reading in evidence of the transcribed stenographic report of Dr. Snow’s testimony given on the first trial is alleged to be harmful eiuor.

The presence of Dr. Snow at the trial and his examination as a witness two or three days afterwards would seem to indicate that even under Section 2723, Revised General Statutes, 1920, a sufficient reason had not been given why the witness was not produced. It is true that it was shown that a subpoena had been issued for the witness among others on April 19th and that an effort to serve it upon the doctor at his office was made on the 21st and two other unsuccessful efforts were made by the deputy to serve him at the office, according to the deputy. The office girl however testified that no effort was made to serve a subpoena upon the doctor at his. officé, but several persons came and asked her where he was and she replied to all such inquiries that she did not know. Such showing could hardly be deemed sufficient, especially when it is considered that at-the first trial which resulted in a mistrial the witness testified and may have been discharged or released from his recognizance to appear at the second trial. The statute, we think, required some show of reasonable diligence on the State’s part to procure the attendance of the witnesses, even if the stenographer’s transcription of his notes was admissible at all under the provisions of Section 2723, Revised General Statutes.

Aside from that however the court’s ruling and the State’s offer of the evidence was directly in the face of the provisions of Chapter 8572, Laws of Florida, 1921.

During the January term of the Supreme Court, 1920, in an opinion prepared by the late Judge James T. Wills, the question of the admission in evidence in a criminal case of the testimony of a witness at a former trial was exhaustively discussed by Judge Wills in the majority opinion and by Chief Justice Browne, who took-a contrary view in a dissenting opinion. Following the opinion in the Blackwell case, which is reported in 79 Fla. 709, 86 South. Rep. 224, the legislature enacted the above statute. The language of the statute is somewhat involved but its evident purpose was to destroy the- effect of the opinion in the Blackwell case, supra. The statute seems to have-been ignored in the trial of this case.

Whether the error in admitting the transcription of the stenographer’s notes of Dr. Snow’s testimony given at a former trial was cured by the subsequent production of the witness himself who was required to testify is .the question presented by the second assignment of error.

The testimony given by the. doctor in person and the stenographer’s transcription of his notes of the same witness’ testimony as given upon a former trial are in substance the same. It varies in detail slightly but that very difference may have been considered of some significance and the writing may have been taken as of better and more reliable evidence. In any event, as was said by Mr. Chief Justice Browne in Gunn v. State, 78 Fla. 599, 83 South. Rep. 511, “This court cannot look into the minds of the jury and determine to what extent such testimony induced the verdict. Nor can we say that it had no effect and was harmless. ’ ’ As in the Gunn case so in this one the State Attorney introduced the evidence, urged its admisibility, evidently because he thought it would be of value in determining the guilt of the defendant.

If it had that effect, and we cannot say it did not, then the defendant suffered an injury wrongfully put upon him. The error committed in allowing the transcribed testimony of Dr. Snow to be read in evidence infringed a fundamental right of the defendant; that of being confronted by the witness against him. It was held in the Blackwell case, supra, that the constitutional guaranty was satisfied by one confrontation, but the legislature by Chapter 8572 supra has declared otherwise and provides that on each trial the defendant shall have the right of confrontation by the witnesses against him.

The word “technical” is sometimes, if not commonly, used to convey the idea of conformation to some formula, conventionality, ritual or the like which has no real significance and is an empty, vacuous ceremony making only for appearance, and not for substance. In such sense, the court’s error was not. technical. It was of substance and may have been very .injurious. J’he second assignment is well taken.

• There are other assignments of error which are unnecessary to be discussed because as the judgment should be reversed upon the ground laid in the second assignment of error the remaining questions become unimportant to a decision of this case.

At the risk, however, of being criticized for unnecessary words, we will say that this court has never placed itself upon record as announcing a rule of evidence under which any drawing, map, plan or sketch, however crudely executed and inaccurate it may be- as a representation of a place the topography and land marks of which are objects about which testimony is offered, may be exhibited in evidence.

The,rule as anounced by this court upon the subject is as follows: “A map, plan or picture whether made by the hand of man or photography, if verified as a true representation of the subject about which testimony is offered, is admissible in evidence to assist the jury in understanding the case.” See Adams v. State, 28 Fla. 511, 10 South. Rep. 106.

For the error pointed out the judgment is reversed.

Taylor, C. J., and Browne, J., concur. Whitfield and West, J. J., dissent.