Thomas J. Holton, Plaintiff in Error, v. The State, 2 Fla. 476

Opinion by Chief Justice Douglas : This case was brought up by writ of error from the Circuit Court of Jefferson County.

The record commences with a caption in the following words, to wit: “ Pleas at the Court House in the town of Monticello, Jefferson County, in the State of Florida, on the first day of December, in the year of our Lord one thousand eight hundred and forty-eight, before the Circuit Court of law of the county aforesaid.” And after setting out an affidavit said to have been made before a justice of the peace, the issuing of a writ by the same justice, and a mittimus to the sheriff of said county, with the following endorsement by the said sheriff, viz : By virtue of the within, I have received and committed to jail the said Thomas J.

Holton” — none of which ought to have been inserted in said record, as they form no part of it — the record proceeds as follows : “ And on another day, to wit: on the twenty-ninth day of November, in the year one thousand eight hundred and forty-eight, and at the October adjourned term of the Circuit Court for Jefferson County, the following entry was made among the records of said court, to wit: “ The Grand Jury came in to court, and presented the following bill of indictment, to wit: The State of Florida v. Thomas J. Holton, felony. A true bill — together with other criminal cases.

The following is a copy of said bill of indictment, with the endorsements thereon, to wit: “ State of Florida. In the Circuit Court for the Middle Circuit of the State of Florida, for Jefferson County, at November term, in the year of our Lord one thousand eight hundred and forty-eight. Jefferson County, ss” Setting out the indictment, which is in the usual form, charging Thomas J. Holton with having murdered one John F. Stafford, with the following endorsement: “ State of Florida v. Thomas J. Holton. Indictment for a felony.— Found Nov. term, 1848. A true bill, Allen R.

McCall, Foreman.” On the first day of December, 1848, as appears by the record, the prisoner, Thomas J. Holton, was arraigned, and pleaded not guilty to the said indictment, and the case was submitted to a jury, who, by their verdict, found the prisoner “ Guilty of Murder”- — upon which verdict, judgment Was pronounced, and the prisoner sentenced to execution; which sentence is succeeded by the following entry: “ and thereupon the said Thomas J. Holton is remanded to jail;” after which, the following order was made by the Court, to wit: “The State of Florida v. Thomas J. Holton, murder, a true bill.

In this case, after the rendering of the verdict by the jury, the defendant by his counsel moved the Court for a new' trial and in arrest of judgment, which motion was overruled,” Whereupon, the said defendant by his counsel prayed the Court to sign and seal his bill of exceptions. “ It is, therefore, ordered that the writ of error asked for in this cause, when issued, shall act as a supersedeas; and there being an omission to state that the Grand Jury presented the indictment in this case ‘ a true bill,’ it is, therefore, ordered that the same be done ‘ nunc pro tunc.’ ” It further appears, by a bill of exceptions, which constitutes a part of the record in this case, that between 11 and 12 o’clock at night, the jury had sent to the judge 'by their bailiff for his charge, and that the clerk had, on a message from the judge, made out the following paper as a copy of the said charge, to wit: “ If the jurors believe that the deceased came to his death by a blow from defendant, stricken with a stick upon the head, and that such blow was given not in self defence, nor in the belief that defendant was in imminent danger of bodily harm, and without adequate provocation, the defendant is guilty of murder.” “ If the jury shall be of opinion that some new injury or violence, subsequent to the blow stricken by defendant, was- made by another, so as to enlarge the wound, or create a new one, and that this caused of itself the death, then you will find the defendant not guilty.” To the close of this last charge, the words “ add accident,” were attached in the hand-writing of the judge, but were omitted in the copy sent by the clerk to the jury— and said charge, omitting the said word accident, and not sealed or certified, and without consent of prisoner or his counsel, was sent to the jury.

It appears, by another portion of the record, which, by-the-bye, is very irregularly made out, that this word accident was, on motion of the prisoner’s counsel, added in the last clause of the charge, immediately after the word “ another,” so as to make it read, “ made by another, or by accident, so as to enlarge,” &c.

It also appears that the prisoner by his counsel moved the Court to add to his first instruction the words — “ But if the jury believe, from the evidence, that the prisoner did not believe at the time he inflicted the blow, that it was with a weapon likely to inflict death, then that the jury might acquit the prisoner which was refused by the Court, and to that refusal, the prisoner by his counsel excepted. The foregoing contains all of the record properly applicable to the question presented in this case.

The important and delicate trust which we are called upon to exercise, in reviewing cases of the description of the one now presented for our consideration, strongly admonishes us of the caution and prudence with which any such examination ought tobe attended. Every step in the conduct of a trial of this nature imposes upon the Court very great responsibility, and requires its fullest deliberation.

All the light which can be derived from authority, or from argument and discussion, is deserving of the most serious attention.— With these views of the character of the duties devolved upon us in this case, we approach the errors assigned; and the first is, that “ it was a fatal error to the proceedings to send the instructions of the Court to the jury — especially to send a copy, and that not a full and ‘perfect copy.” This assignment is based upon the fact stated in the record, “that between twelve and one o’clock at night, the jury had sent to the judge by their bailiff for his charge, and that the clerk had, on a message from the judge, made out a paper containing the following, which he sent to the jury, viz : “ If the jury shall be of opinion that some new injury or violence, subsequent to the blow stricken by the defendant, was made by another, so as to enlarge the wound, or cause a new one, and that this caused of itself the death, then you will find the defendant not guilty.” It further appears, that when this charge was given to the jury, counsel for the prisoner moved the Court to add the word accident, so as to make the charge read, “ made by another, or by accident,” &c., which was done ; and that the judge added the words (by an asterisk) in his own hand-writing, at the foot of the written charge ; but that the clerk, in the paper that he made and sent to the jury, left these words out.

The first question presented for our consideration, upon this statement of facts, is, whether this paper, admitting it to have been a full and true copy, could rightfully have been sent (as this was sent) to the jury 1 And after the most mature deliberation, and the most full consideration of the question, we are of opinion that it could not.— The Constitution of this State, chap. 1, sec. 2, No. 10 Thompson’s Digest, page 2, amongst other things, provides, “That in all criminal prosecutions, by indictment or presentment, the accused shall have a speedy public trial, by an impartial jury of the county or district where the offence was committedand No. 15, page 3, “ No person shall be put to answer any criminal charge, but by presentment, indictment, or impeachment.” The charge of the court to the jury is the evidence to them of the law which they should apply to the facts, and is part and parcel of the trial of the cause, the whole of which should be public.

The statute approved January 4,1848, sec. 8, Pamph. Laws, p. 10, requires, “ That charges made by judges to juries in criminal cases shall be reduced to writing, and filed in the case and because this is so, it has been urged by the Attorney General, that “ If the charge sent to the jury contains nothing more than the written charge filed in the case, it would seem that it is not error, because there is nothing in such a proceeding which gives reason to suspect the purity of the verdict, and nothing which affects the impartiality of the trialand Davis’ Cr. L., 467, and 12 Pick.

Rep., 510, 519, were cited to sustain this proposition. In the case in 12 Pick., the constable who attended the jury furnished them some refreshments, without an order of the Court, but they were such as the Court deemed reasonable, and without deciding whether the facts disclosed an irregularity or not, it refused to grant a new trial for that cause.

Davis says: “ The present inclination of the courts appears to be, rather to relax than to increase the strictness of the law on this subject, in so far as the object to be attained, which is the guarding against the exercise of any improper influence over the jury, will allow; and, therefore, where there is nothing in the transaction which gives reason to suspect the purity of the verdict, to sustain it, notwithstanding any trivial irregularity, not affecting the impartiality of the trial.” In the case of Guykowski v.

The people, 1 Scamm., 479, also cited by the Attorney General, the Court held the following language : “ Where there is every reason to believe, from an inspection of the proceedings, that the intrinsic merits of the case have been fairly ascertained and determined, the adjudication of the inferior tribunal should not be disturbed, unless it satisfactorily appear that some settled and well established principle of criminal law, or rule of proceeding, has been clearly violated.” While the justice of the rule here asserted is admitted, and an adherence to its principles conceded, it is of equal importance that the rights of the accused should be protected and preserved, and the essential forms of law prescribed for the mode of conducting the ascertainment of his guilt, should be carefully observed and followed.

A departure from them could not fail to produce difficulties and doubts. A recognition of a departure in one case, might lead to the adoption of another; and, finally, those barriers, which are guarantees for the regular and impartial conducting of criminal cases, might be frittered away, and possibly eventuate in gross injustice. It is much easier to require the observance of the mandates of the law, than to determine in what cases they may be safely dispensed with.

It is, therefore, more proper and more consonant to reason and justice to require a substantial adherence, than to suffer innovations upon the known and positive rules prescribed by law for the regular conducting of causes.

The justice of these grounds is as clear and apparent, as those which are founded on principles of humanity, by which the administration of criminal law has been marked, and which declare that the accused stands on all his rights, and waives nothing which is irregular, and more especially so, where life is in the question.” Testing this case by these principles, we enquire whether a positive rule, prescribed by the Constitution, which is the paramount law of the State, would not be violated, by thus sending the charge to the jury ?

It would be nothing less or more than re-charging the jury at their room, in the absence of the prisoner and his counsel, as had been once publicly done in their presence, in open court.

We are not prepared to say, what effect this might have upon the jury in determining their verdict; but certain it is, that if the charge, instead of being sent to the jury, had been re-read to them by the judge in open court, in presence of the prisoner and his counsel, they would have had the right (and might have exercised it) of moving for additional instructions, and if their motion was overruled, of excepting to the opinion of the Court, or of excepting as to those already given, if they had not done so before ; upon which exceptions, the prisoner might have based a writ of error.

Of the benefit of all this a prisoner might be, and of all but the last he actually was, deprived in this case, by the course that was adopted. But if a doubt could be entertained upon this point, we think there can be none whatever that if a charge, in such a case and under such circumstances, may be sent by the judge to-the jury, it should be' the original one, and not a copy.

But there was another very important, settled and well established principle of criminal law violated, we think, by this proceeding j which is, that during the trial of a capital case, (the whole trial,) the prisoner has a right to be, and must be, present — no step can be taken by the court in the trial of the cause in his absence.

This results from the humanity of the law, and the tender regard it has for human life ; which forbids that any proceedings shall take place in the trial of such a cause, .unless the prisoner charged is present in court, to make his objections to any and every step that may be taken in it, which he may deem illegal, and to do whatever else he may or can legally and properly do in his own defence.

Suppose that after the testimony has been taken the prisoner escapes, or becomes sick, and is unable to be brought into court, can the jury render a verdict 1 Suppose he escapes or is taken sick, and is thus disabled, after the verdict has been received, can judgment be rendered'! If he were to escape or become sick, and unable to remain in court while the testimony is being taken, or the charge is being given, would the cause proceed ? In the case of the State v. Hughes, 2 Alabama Reps., 103, 104, Collier, Ch.

Justice, delivering the opinion of the Court, said : ‘‘The 10th sec. of the 1st art. of the Constitution declares, that “In all criminal prosecutions, the accused has a right to be heard by himself and counsel,” &c.; again — ■“ and in all prosecutions, by indictment or information, a speedy public trial by an impartial jury of the county or district in which the offence shall have been committed— he shall not be compelled to give evidence against himself, nor shall he be deprived of life, liberty, or property, but by due course of law.” This constitutional provision guarantees to the accused the right, not only to discuss questions of law and fact, which may arise preparatory to or pending the trial before the jury, or other proceedings in the cause.

That he may avail himself of this privilege, the opportunity must be afforded him of coming into Court and being heard, before he is foreclosed of any legal exception. If a different course is pursued, and a sentence 'pronounced against him, extending to life, liberty, or property, he cannot be said to have been “ convicted by due course of law.” Our constitution, sec. 2, No. 8, is essentially the same in principle, as that of Alabama above cited.

In Sperry’s case, 7 Leigh Reps., 623, (2 supp. to the United States Digest, page 154, No. 242,) the record showed that on the 29th of September, 1837, the accused was led to the bar, in custody of the keeper of the jail, and was then arraigned and pleaded, and on motion of the prisoner, the cause was continued until the first day of the next term, and thereupon he was remanded to the jail. Af-terwards, at a court held the 27th day of April, 1838, it was entered upon the record, that on that day “ came, as well the attorney for the commonwealth, as the prisoner by Ms attorney, and thereupon came a jury,” &c.

The jury, not agreeing upon their verdict on that day, were adjourned over until the next. Nothing being stated on the record, from which it could necessarily be inferred that the prisoner was personally present on the 27th April, the General Court decided that the verdict, which was found on the following day, should be set aside, and a venire de novo awarded. In the case of the Commonwealth v.

Parker, 2 Pickering, 550, which was an indictment for murder, after the jury had been impannelled, and the circumstances of the case stated to them, the counsel for the prisoner moved that the jury should view the place where the assault was .alleged to have been made. Parker, Ch. Justice, asked the counsel if they knew of an instance of a view being granted in a case like this, saying that it seemed to violate the principle, that the proceedings should be in the presence of the accused. 3d Robinson’s Practice, 178. 1 Chitty’s Crim. Law, 636, and 4 Black. Comm., 317, and the State v.

Battle, 7 Alabama Reps., 259, are also authorities which tend to sustain this view of the matter. In the case last cited the Court held, that, when a prisoner will not ap-' pear in court to hear the verdict which the jury announce themselves ready to render, the Court may order a mistrial. This was a charge of an assault with an intent to kill, and the prisoner had fled when the jury came in — and if the Court would not proceed in such a case in the absence of the prisoner, surely it should not in a capital case. In Sergeant v. Roberts, et al., 1 Pick.

Reps., 338, cited by the counsel for the prisoner, there was a motion for a new trial, and one of the grounds on which it rested, was a written communication from the judge to the jury, after the Court was adjourned, in answer to a note from their foreman, stating the improbability of their agreeing upon a verdict. In regard to this, Parker, Ch.

Justice, who delivered the opinion of the Court, said: “ As it is impossible, we think, to complain of the substance of the communication, the only question is, whether any communication at all is proper ; and if it was not, the party against whom the verdict was, is entitled to a new trial.

And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and where practicable, in presence of the counsel in the cause.” This is a civil case, and the principle asserted in it applies with far greater force in a criminal, and especially in a capital case. It is true, that in Shepley v. White, 6 New Hamp. Reps., 172, which was somewhat similar in principle, a new trial was refused.

The judge who delivered the opinion in the case, after commenting upon the cases of Thayer v. Van Vleet, 5 John. Reps., 111, and Brown v. Crane, 10 Johnson, 239, concludes as follows : “ The principle to be deduced from these cases seems to be a sound one. If the jury, after an adjournment, put a question respecting the facts of the case to the Court, it will be irregular to state the evidence relating to it; but if they desire instruction upon a mere question of law, that may be answered.

It should undoubtedly be answered in such a way that the parties may have an opportunity to have it corrected, if there is error in the answer ; and in this way, all the rights of both parties are secured as effectually as if the answer was given in open court.” This also was a civil case, and we doubt exceedingly whether the learned court who decided it, would have sustained such a proceeding in a capital case.

The last paragraph of its opinion shows very clearly that it ought not to be applied in such a case, because if the verdict is for the prisoner, it is conclusive; and the error (if such error produced it) could not be corrected; and it is the duty of the Court to hold the scales of justice even between the prisoner and the State. The second error assigned is that “ The indictment is bad, because it contains abbreviations and contractions in various parts, such as the for “and.” & is not a letter, but a character which represents the word and, and nothing else — it would be better to use the word itself.

This character, however, although it may have been discarded by some classical writers and others who are very nice and particular in regard to their style of writing, has generally obtained, been long in common use, is as well understood as the word “and” itself, and is not therefore obscure, ambiguous, or likely to deceive or mislead ; and it is only such as are ambiguous or obscure that render an indictment bad. An indictment ought to be certain to every intent and without any intendment to the contrary. 1 Chitty’s Cr. L., 306. Cro. Eliz., 490. Cro. Jac., 20.

But this strictness does not so far prevail as to render an indictment invalid in consequence of the omission of a letter which does not change the word into another of different signification, as undertood for understood, and receiv’d for received. 1 Leach Cr. Ca., 134, 145. And if the sense be clear, nice objections ought not to be regarded. 1 Chitty’s Cr. L., 172. 2 East, 259, 260. We therefore think that this objection is not sustained.

The third error assigned is that “ There did not appear of record that the Grand Jury had ever found “ a true bill,” and though the Court has ordered the record to be altered, it could not be done.” The record, as we have seen, commences as follows, to wit:— ‘‘Pleas at the Court House in the town of Monticello, Jefferson County, in the State of Florida, on the first Monday of December, in the year one thousand eight hundred and forty-eight, before the Circuit Court of law for the County aforesaid,” saying nothing of its being an adjourned term.

And the next entry, (after setting out an affidavit, warrant and commitment, &c., which are no part of the record,) is as follows : “ And at another day, to wit, on the 29th day of November, in the year one thousand eight hundred and forty-eight, at the October adjourned term of the Circuit Court of Jefferson County, the following entry was made among the records of the Court, to wit: The Grand Jury came into Court and presented the ■following bill of indictment, to wit: The State of Florida v. Thomas J.

Holton, Felony, a true bill.” This is all that the record contains respecting the finding of the Grand Jury in this case ; and by another part of it we are informed that the words “a true bill” were not in the record until after the verdict was found and judgment rendered thereon, when the Court ordered that it be inserted “nuncpro tunc and the right of the Court to make this order, at that stage of the proceedings, is denied by the counsel for the prisoner, and may well be doubted.

But from the view that we have taken of this case, we do not deem it necessary now to decide that question, as we have come to the conclusion, after a due examination of the record and the most mature deliberation, that there is no proper showing by the record that any bill of indictment for murder was ever found by a Grand Jury against the prisoner, and that the first error assigned is well sustained.

The clerk has, after the entry of the finding above mentioned, spread in exdenso upon the record a paper purporting to be an indictment against the prisoner for murder, which, he says, is a copy of the said bill of indictment, with the endorsements thereon ; and, at the foot of it, he says “ Endorsed, State of Florida v. Thomas J. Holton, Felony, found at November term, 1848.” Now an indictment found at November term, 1848, is not an indictment found (as stated in a former part of the record,) at the October adjourned term, 1848. The clerk states further that this indictment was endorsed “Allen R.

McCall, Foreman,” but there is nothing in the record to show that Allen R. McCall was foreman of a Grand Jury at either the October adjourned term, 1848, or at the November term, 1848, if any such term was holden. There was not, however, any statute authorizing such a term to be held, and it is presumed that none such was holden ; and if the bill was in fact found a true bill at the October adjourned term, the record should have shown when the original session commenced, but it does not. Chitty, 1 Cr.

L., 331, says : “ If an indictment is taken at an adjourned session, it must be shown when the original sessions commenced, as well as when the bill was preferred, in order to show that it is within the time prescribed by the statute.” And see The King v. Fisher, 2 Strange, 865 ; 3 Bac. Abr., title Indictment, page 94, letter K. The caption of an indictment is a formal statement of the proceedings, describing the court before whom the indictment was found, the time and place where it was found and the jurors by whom, it was found, and these particulars it must set forth with sufficient certainty. 1 Chitty’s Cr.

L., 326.—5 Bac. Abr., title Indictment, 93. This record does not show the name of the judge who held the Court, unless we can infer it from finding the name of a judge signed to a bill of exceptions, after the trial was over; nor does it set forth the names of the Grand Jurors who found the alleged indictment, or even show that one was em-panelled at either of the terms of the Court mentioned.

It is possible that these two last mentioned defects might have been amended, if the proper steps had been taken in time, but that would have availed nothing ; for, if we could presume that the Court was holden at the time prescribed by law, and by the proper judge* and that a Grand Jury was duly empannelled and sworn, and that Allen R. McCall was foreman of it, when the record states that the Grand Jury found “ a true bill” against Thomas J.

Holton for felony, we think that we are not warranted in saying that they agreed upon finding and did find a “true bill for murder.” The fact that a paper called an indictment for murder is spread out in extenso on the record does not cure the defect, which is, that, by the record it also appears that the Grand Jury did not find a true bill for murder, but only for felony.— It has been suggested that the word “felony” might be rejected as surplusage; but it would read that the Grand Jury came into Court and presented- an indictment against Thomas J.

Holton “ a true bill” without showing for what; which would not help the matter. Felony is a generic term, which includes all capital crimes.—4 Blackstone’s Comm., 63. Davis’ Cr. L., 62. In Cawood’s case, 2 Virg. Cases, 541, the record showed that the Grand Jury were regularly empannelled and sworn, that they found many bills of indictment and made several presentments, and then, having nothing further to present, were discharged.

In the record of the proceedings of the Grand Jury there was no entry of any bill being found against the prisoner ; the paper, however, which was copied into the record as the indictment, had on it the endorsement “ a true bill,” and this endorsement was signed by the person who was foreman of the Grand Jury at the term at which the prisoner was arraigned.

It was stated in the proceedings had upon the trial, the prisoner “who stands indicted for murder, was led to the bar and thereof arraigned, and pleaded not guilty to the indictment.” Held, that the prisoner did not appear by the record to have been indicted ; that the failure to record the finding of the Grand Jury could not be supplied by recording the paper purporting to be an indictment, nor the endorsement thereon, and that the subsequent plea of “not guilty,” pleaded by the prisoner, did not cure the defect of the record.

The Grand Jury cannot find one part of the same charge to be true and another false; they must either maintain or reject the whole, and therefore if they endorse .a bill of indictment for murder “ billa vera se defen-dendo,” or “ billa vera,” for manslaughter and not for murder, the whole will be invalid and may be quashed on motion. 1 Chitty’s Cr. L., 322 and authorities there cited in note (e). 2 Hale 162.— So we think of a finding for felony on a bill of indictment for murder. Felony comprises every species of crime which occasioned, at common law, the forfeiture of lands and goods.

This most frequently happens in those crimes which are punished with death. 4 Black. Comm., page 94. The second

section of the act relating to crimes and misdemeanors, (Duval’s Comp., 113,) declares that any person convicted of murder, rape or arson shall be punished with death. Here, then, therq are three felonies enumerated in the very

section which provides for the punishment of murder’. Manslaughter, too, is a felony at common law and is so regarded throughout this State. In all trials for that offence the prisoner has always been allowed his twenty peremptory challenges, under the 14th

section of the act of November 19th, 1828, for the apprehension of criminals, <fcc., -which says : “ In all cases of felony the accused shall have a right of peremptory challenge of twenty.” Upon an indictment for murder the jury may acquit of the malice aforethought and murder, and find guilty of manslaughter. 1 Chitty’s Cr. L., 688, and authorities there cited in note. Non constat but the Grand Jury could not agree upon a finding for murder and so found for felony in this case.

The fourth and only remaining error assigned is that “ The Court erred in refusing instructions asked as an amendment to those granted.” The instruction asked and refused was as follows : “ But if the jury believe from the evidence that the prisoner did not think the blow was likely to produce death, then that the jury should acquit the prisoner;” and we think that the Court did right in refusing it.— Had it clearly appeared that he so thought, or had a right so to think from the size of the stick used, still he would not have been entitled to an acquittal — it would only have reduced the offence to manslaughter.

This assignment, therefore, is overruled. But, for the reasons above stated, upon th o, first and third errors assigned, we are of opinion that the judgment of the Circuit Court of Jefferson County should be reversed, a supersedeas to the sentence of death awarded, that the indictment be quashed and that the prisoner be held to answer to a new bill of indictment to be preferred against him, and that the cause be remanded for further proceedings in accordance with this opinion. Per curiam,.

Note. — The Reporter understands that Justice Hawkins did not assent to all the views taken by the Court in the foregoing opinion. No expression of dissent was heard from him, however, and it is believed he concurred in the judgment pronounced hy the Court.