CELLOS HARRISON v. STATE OF FLORIDA, 152 Fla. 86

THOMAS, J.: In obedience to a judgment of this Court, filed 20 January 1942, reversing the conviction of the appellant Cellos Harrison, the case was again tried and again he was found guilty of murder in the first degree and sentenced to death by electrocution. Most of the salient facts were detailed- in that decision, Harrison v. State, 149 Fla. 365, 5 So. (2nd) 703, and the confession of the defendant was there given verbatim.

There is litle need to repeat here all of the circumstances of the foul murder of one Johnnie Mayo because, as developed in the second trial, they were substantially the same as in the first one. The appellant and others were arrested immediately following the crime and were released. The following year he and an acquaintance, both suspects, were apprehended and the appellant was placed in the jail at Quincy, in an adjoining county, while the other prisoner was incarcerated at Marianna.

This procedure of separating prisoners to prevent fabrication by them of consistent defenses is not unusual and has long been practiced. Later, the appellant was removed to the jail at Tallahassee by the sheriff of Jackson County, one of his deputies and a special investigator in the employ of the State. In the course of this journey, a distance of about twenty-five miles, a conversation was held between the investigator and the defendant and upon arrival at the jail in Tallahassee the appellant made the confesión which was thereupon reduced to writing and signed by him.

The discussion in the former opinion centered largely on the law governing the introduction of this sort of evidence and the gist of the decision was that in a case where the life of the defendant was at stake and conviction could not, in all probability, be obtained in the absence of the confession it was the duty of the trial to charge the jury on that particular aspect of the testimony even though there was no request on the part of the accused to do so. We retain the opinion, then expressed, that conviction would not have been possible without the admission of guilt by the defendant.

We have scrutinized all of the testimony and particularly that part of it establishing the circumstances which surrounded the confession and its reduction to writing. The question of the failure of the court to give the charge is eliminated in this appeal because five distinct instructions on the subject, all of them requested by the defendant, were read to the jury and, indeed, the appellant now presents no challenge to the judgment upon any ground save the sufficiency of the evidence as a whole and the admissibility and credibility of the confession in particular.

Our examination has convinced us that the trial judge scrupulously observed the decisions of this court in determining the admissibility of the confession from an examination, in the absence of the jury, of the witnesses who were present when it was given and that he was thoroughly justified in his conclusion that it was free and voluntary. After announcing his ruling the witnesses whom he had heard were re-examined so that the jury could determine, not only from the evidence itself but from the manner in which it was obtained, how much credibility could be given it. Brown v. State, 135 Fla. 30, 184 So. 518.

It is our view that no abuse of discretion was shown by the judge in performing his function of passing upon the admissibility and we have found no reason to interfere with the verdict of the jury because they were justified in finding the defendant guilty if they believed the witnesses gave a truthful account of the obtaining of the confession. The paper itself, they stated, was dictated, read and signed by the appellant. It clearly described the manner in which he had felled the deceased by crushing his head with a hammer. We are not disposed to interfere with the judgment and, therefore, it is— Affirmed.

WHITFIELD, BUFORD, and ADAMS, JJ., concur. BROWN, C. J., TERRELL, and CHAPMAN, JJ., dissent.