Opinion
October 17, 1952. Rehearing Denied December 19, 1952.
Appeal from the Circuit Court, Duval County, Charles A. Luckie, J.
William H. Maness, Jacksonville, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for appellee.
Jimmie Lee Brown was indicted for murder in the first degree in Duval County, tried on said charge by a jury and found guilty. Thereupon he was adjudged guilty by the Court and sentenced to death.
The facts briefly stated are, that one John Blake Rogers was found on the early morning of April 24, 1951, in a filling station where he worked, badly battered about the head. He later died from the wounds that were caused by heavy blows of a blunt instrument that fractured the skull. Money in the amount of about $65 was missing from the cash register.
Suspicion fell on Jimmie Lee Brown and he was arrested on April 25th when he returned to work at the filling station, where he also had been employed, after failing to report for work on the two preceding days.
Upon being arrested he was taken to the city jail in Jacksonville. A warrant was obtained for his arrest April 26, 1951, charging first-degree murder, and it was served on April 27th. A hearing was held on April 28, 1951, at 11:30 A.M., before the Justice of the Peace who had issued the warrant.
An oral confession was made on April 27th to Captain Eddins by Jimmie Lee Brown, and Captain Eddins was shown the hammer with which the crime had been committed, according to Jimmie Lee.
On April 27th the defendant made a statement to Captain Eddins, the State Attorney and others, in which he gave details of his actions on the days preceding the homicide, during the homicide and after the homicide. This statement was taken down by a court reporter and introduced in evidence.
During the trial the defendant took the stand and testified to substantially the same facts as given in the confession and admissions to Captain Eddins and the one taken down by the court reporter. There were a few minor differences between the testimony given by Jimmie Lee Brown at the trial and in the confessions.
Jimmie Lee Brown testified that he'd lost money gambling and decided to see if he could borrow money from Mr. Rogers, whom he knew to be on duty at the filling station, and that he went to the station about 10:00 P.M. and stayed there until about 1:00 A.M., trying to make up his mind whether he would ask Mr. Rogers for the money, all the time keeping out of sight.
Finally he figured out that maybe Mr. Rogers wouldn't accommodate him, so he decided to steal the money, and when he saw Mr. Rogers doze off he pushed open the swinging doors to the filling station office which were closed. He saw Mr. Rogers apparently about to awaken, so he picked up a hammer from a table just outside the door, went into the office and hit Mr. Rogers twice with the hammer, opened the cash register and fled with the money he found there, which he estimated to be about $45, and which he later spent gambling.
It was estimated by the son-in-law of the owner of the filling station that approximately $65 was taken by the robber from the cash register.
Three questions have been posed by the appellant and they will be taken up in order.
The first was that the trial Court committed error in not permitting the defense to ask Captain Eddins if he had formed a fixed opinion of the guilt or innocence of the accused, which he contended would show the prejudice or bias of the witness, if any.
A careful reading of the evidence discloses that the witness had previously said in his testimony, one or more times, that he had determined the accused was the man who killed Blake Rogers. The rights of the defendant were in no way injuriously affected by the ruling of the trial Court in sustaining the objection to the question as asked.
The only question as to the actual commission of the crime was given by the defendant, both in his testimony and in his confessions or admissions. Therefore, there is no dispute as to the facts in that regard.
From his own statement it is obvious that the defendant broke into the office or building by opening a closed door, that he armed himself with a deadly weapon, to-wit: a hammer, and did kill Mr. Rogers with the hammer when he thought he was about to be recognized or detected in the act of stealing the money from the cash register. These facts clearly constitute a charge of robbery by persons armed as defined in Section 813.01, Florida Statutes 1951, and F.S.A., and not unarmed robbery as defined in Section 813.02, Florida Statutes 1951, and F.S.A., so there was no reversible error on the part of the trial Judge in his charge as to Section 813.02, Florida Statutes 1951, and F.S.A. Under the facts the learned trial Judge could have charged also as to burglary. The facts did not warrant a charge, as requested, on larceny or the requested instructions on third-degree murder.
As to the trial Judge not having read to the jury Section 901.23, Florida Statutes 1951, and F.S.A., which relates to the duty of officers upon arrest without warrant, the case cited by appellant of People v. Alex, 265 N.Y. 192, 192 N.E. 289, 290, 94 A.L.R. 1033, would seem to control the point. The court there said:
"In every case where there is a substantial question of the voluntary nature of a confession obtained while a defendant is in the custody of the police, and arraignment is delayed, it is the duty of the trial judge, at least upon request of counsel, to charge that any `unnecessary delay' in arraignment is forbidden by law and should be considered by them."
In the instant case there was no substantial question of the voluntary nature of the confession and, indeed, the defendant testified to the same facts with few variations at his trial, so the failure to give the requested charge which contained only the words of the statute was not error.
Although the insufficiency of the evidence was not made a ground of appeal we have reviewed it to determine if the interests of justice require a new trial and have found that they do not. See Section 924.32(2), Florida Statutes 1951, and F.S.A.
No reversible error having been made to appear the judgment of the trial court should be and is
Affirmed.
SEBRING, C.J., and TERRELL, THOMAS, HOBSON, ROBERTS and MATHEWS, JJ., concur.