John A. Stanton v. State of Florida, 148 Fla. 732

Adams, J. This appeal is from a conviction of murder in the first degree without recommendation. The defense was not guilty on the ground of insanity. We are asked to determine: first, whether the evidence is sufficient; and second, whether the verdict was concurred in by all twelve jurors. The trial judge proceeded acording to

Section 203 of the Criminal Procedure Act of 1939, determined the defendant was sane and ordered him to stand trial. In this ruling we find no abuse of discretion. The evidence before the jury disclosed that defendant, a man of about fifty years of age and one Taylor, about twenty-two years of age planned a robbery. Rubber gloves, screw driver, handkerchief for a mask and a crow bar were procured by defendant. The two of them late at night,- broke and entered a building where deceased was sleeping. They entered the room where deceased was asleep.

Taylor held a flashlight on deceased while defendant commanded him to turn over and be tied up. At that time deceased asked how they had gotten in his place and started to raise up whereupon defendant struck him several fatal blows over the head with the crow bar, turned him over, tied and gagged him. Defendant and Taylor then robbed the place and departed to a distant city. Deceased was found later in the morning in the same condition, dead.

Medical testimony with defendant’s history depicted him as a shrewd, calculating, selfish, egotistical and domineering individual with criminal inclinations so strong that he was callous to all law and morality. This is severe language, however every adjective is sustained by the medical testimony introduced by defendant. The defendant did not testify. His case history referred to by his medical experts showed that at times he experienced hallucinations, imagining he heard voices commanding him to do certain things. He often disobeyed them.

There was no pretense that he committed this crime under any hallucination. He claimed the deceased had cheated him of some trivial sum and he was therefore justified in the robbery; that when deceased resisted being tied up he was justified in the assault. The gist of the medical opinion is that defendant knew at all times the nature of his offense and also the penalty for same; that he knew right from wrong; that he was and is now conscious of his deed and the probable punishment.

Insanity being a legal rather than a medical term, we must consider the medical testimony by our own definition of insanity rather than by the medical terminology. We have said in Davis v. The State of Florida, 44 Fla. 32, 32 So. 822: “If the accused was conscious that the act was one which he ought not to do, ánd if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing

an act that was wrong.” We are not without sympathy for the medical suggestion in the record that the law should not take its course because of defendant’s abnornial mental philosophy of life. A judgment nearer divine would perhaps judge the culprit more according to his environment and understanding. Society, as a matter of self defense, is committed to our rule. All offenders of legal responsibility are amenable to the same standard of law. It can hardly be said that defendant was incapable of performing a premeditated intent to kill. He prepared for his crime with the greatest of detail.

His motive was robbery. He armed himself with a deadly weapon. He broke and entered as a thief in the night. He masked to avoid recognition. He wore rubber gloves to avoid detection and fled to a distant point after the deed was done. “The deed was planned and executed with a degree of self possession and wickedness equal only to the atrocity of the crime itself.” His only excuse to a court of justice is a lack of will power to restrain his rampant desire. We hold the evidence sufficient to sustain the verdict of the jury. We now consider whether the verdict was concurred in by all twelve jurors.

It is claimed that it was not concurred in by the juror, Morrison. While the jury was being polled by the clerk the following occurred: “The Clerk: Charles F. Morrison, is that your verdict ? “Juror Morrison: No sir, it isn’t mine. I vote first degree murder with mercy, but not without it, and I will not. “The Court: It is your verdict except for the mercy ? “Juror Morrison: Yes, sir, but I will not send that man to the electric chair with my vote. “The Court.

It is your verdict? “Juror Morrison: I am still for mercy. “The Court: But you recommend mercy? “Juror Morrison: Yes, sir.” Thereupon, defendant’s attorney, Mr. Swink, interrogated the juror further as follows: “Mr. Swink: Mr. Morrison, this verdict is recorded and the law says that the majority of the members did not recommend mercy, that verdict will stand and this man goes to the electrict chair, and regardless of whether you want mercy or not. Would you say then, and do you say now, that that is your verdict? “Juror Morrison: I say first degree murder with mercy, and I wouldn’t vote any other way. “Mr.

Swink: Well, you have voted already. “The Court: Don’t argue with him; ask him anything you want to. “Mr. Swink: Mr. Morrison, is it your verdict of murder in the first degree, — is it your verdict when you know it carries the death penalty? Answer that yes or no. “Juror Morrison: No. “Mr. Swink: He said, no. “The Court: I didn’t hear him. What is your verdict, Mr. Morrison? “Juror Morrison: My verdict is guilty in the first degree, with mercy. “The Court: All right, is that clear, Mr. Swink ? “Juror Morrison: I don’t propose to send him to the electric chair. “The Court: Is that clear, Mr. Swink? “Mr.

Swink: Not quite judge, if it please the Court. — Is it still your verdict if it carries with it the death penalty? “The Court: Now, Mr. Swink, you may ask this juror what his verdict is. The law fixes the penalty, not the jury; and a majority of the jury has the privilege of recommending him to the mercy of the Court. The jury has been polled, and you can figure for yourself whether there be a majority or not. “Mr. Swink: If the Court please, may I ask Mr. Morrison one other question. Do you wish, Mr. Morrison, at this time, to change your verdict, or do you want your verdict to be recorded?

Juror Morrison: Let it be recorded.” It is clear to us as it must have been to the trial judge that the juror would agree to no other verdict. The judgment is affirmed. Brown, C. J., Whitfield, Terrell, Chapman, and Thomas, J. J., concur. Buford, J. dissents.