EMILIO GARCIA, JOSE RODRIGUEZ AND CAMILIO SANS, PLAINTIFFS
IN ERROR, VS. THE STATE OF FLORIDA, DEFENDANT IN ERROR
[NO NUMBER IN ORIGINAL]
Supreme Court of Florida
34 Fla. 311; 16
So. 223; 1894 Fla. LEXIS 197
June, 1894
PRIOR HISTORY: [***1]
Writ of Error to the Circuit Court for Monroe county.
The facts of the case are stated in the opinion of the court.
HEADNOTES: 1. Where the judgment of the Circuit Court refusing
a motion for change of venue in a criminal case is a plain and palpable abuse
of the discretion permitted by law in such cases, it is such error as requires
the interference of the appellate court and a reversal of the judgment.
2. The evidence offered by the plaintiffs in error on their motion for change
of venue, as fully set out in the opinion herein, not being disputed by any
evidence upon the part of the State, was such a showing as necessitated a
change of the venue, and the refusal to grant the motion was error.
3. Our statute (R. S. sec. 2918) simply permits the court in criminal cases
"to order a view by the jury." Being a criminal statute it should be
strictly construed, and in the absence of any provision as to the manner of
making the view, the action of the jury should be confined to a view -- i.e., a
seeing of and inspection of the premises.
4. The statute cited in the preceding head-note does not authorize the
examination of witnesses before the jury while they are away from the court
house engaged [***2] in taking the view ordered by the court. Where
there is a county court house in the county, that is the proper place for the
trial of criminal cases, and no portion of the trial should be removed to any
other place without express authority of law.
5. In the absence of legislative provisions describing the mode in which jury
views are to be conducted, it is more in consonance with the theory and methods
of judicial trials that the jury should base their findings solely upon sworn
testimony in open court, or by depositions taken as provided by law.
6. The extent to which the Circuit Court may go in ordering a view by a jury in
a criminal case is to direct a view of the premises, where a crime is supposed
to have been committed, by the jury. The defendants and counsel for the
respective parties may be permitted to accompany them, and some person selected
by the parties, or named by the court, may accompany the jury to point the
premises out to them.
7. Plaintiff's in error offered evidence tending to establish an alibi for some
of them. Their counsel insisted that such evidence was not offered to prove an
alibi, but only to contradict other evidence offered by the State, and insisted
[***3] that the court should not charge the jury as to the law upon
the subject of alibi: Held, that the court should charge the jury upon the law
applicable to the evidence given by the witnesses, and is not bound to accept
the construction placed upon such evidence by counsel.
8. The court in an instruction to the jury upon the subject of alibi, after
stating in effect that it need not be proved by the defendants beyond all
reasonable doubt, but that "it was sufficient if, when taken with all the
testimony, it raised a reasonable doubt in the minds of the jury of the
presence of the defendants, or either of them, at the commission of the
crime," said "then it will be your duty to acquit all, or such of the
defendants as you so believe not to have been present at the commission of the
crime:" Held, that the portion of this charge in italics was erroneous.
Instead of such language the following should have been used, viz: "Then
it will be your duty to acquit all of the defendants to whom such reasonable
doubt applies."
COUNSEL: Jefferson B. Browne and N. B. K. Pettingill, for
Plaintiffs in Error.
William B. Lamar, Attorney-General, and Thomas Palmer for the State.
OPINIONBY: LIDDON
OPINION: [*313] [***4]
[**224] LIDDON, C. J.:
The plaintiffs in error were indicted at the Spring term, 1893, of the Circuit
Court of Monroe county, for the murder of one Jaime Mira. Thirty-five
assignments of error are made here. We shall consider such of them as appear
necessary to a proper disposition of the case.
The first three assignments relate to rulings of the court overruling motions
of the plaintiffs in error (defendants below) for a change of venue. It is
alleged that several motions were made for such change of venue, but the bill
of exceptions shows only one, which was made at the Spring term, 1894. We
confine ourselves, therefore, in considering this question, to the third
assignment of error, which is predicated upon this ruling. This motion was upon
the ground that the defendants could not "obtain a fair and impartial
trial before a jury in said county of Monroe, as shown by affidavits filed and
refiled with the motion and prayed to be taken as a part of it. A number of
affidavits which had been offered with previous motions of the same character
were refiled, together with additional affidavits from the respective
defendants, that the statements in said former affidavits were
[***5] still true and as applicable to said cause as when the same
were made. New affidavits were also originally filed and considered by the
court upon the motion. Fernando Figueredo and Jose C. Bolano, after confirming
a previous affidavit and asserting its present applicability to the case,
deposed, in substance, as follows: Since the last term of this court serious
trouble has arisen between the Cuban inhabitants of said county, to which race
defendants belong, and the other inhabitants thereof; that as a consequence of
said trouble, [*314] a very strong feeling of ill-will and
prejudice exists against said Cuban inhabitants in general, which will tend
still further to the harm and injury of the defendants before a jury of said
county, and will greatly increase the prejudice against the defendants; and
deponents verily believe that said defendants can not obtain a fair and
impartial trial before a jury of said county. That very few of the Cuban
inhabitants of said county speak English well enough to sit on a jury, and that
practically none of said Cuban inhabitants are qualified in all respects so as
to be eligible to sit upon a jury in said county. Mortimer Falk and John Denham
[***6] deposed that they were citizens of Key West, in said county;
that they had heard various persons express opinions in regard to the guilt of
defendants, and were acquainted with the general sentiment of the community in
regard thereto; that from what they have heard, and their knowledge of such
prevailing sentiment, they believe that defendant could not obtain a fair and
impartial trial in said county; that they had heard citizens of said county say
that the defendants ought to be convicted on general principles, and that deponents
believed that such was the prevailing sentiment among the people of said
county. J. I. Ricker deposed, in substance, that he had been a resident of
Monroe county for more than ten years; that he was engaged in running a
saw-mill -- sawing wood for family use; that he was not acquainted with the
defendants; that he never saw either of them until he was called upon a jury
which tried them a year before; from statements which he had heard from
citizens of said county expressive of their opinion, he did not believe that
the defendants could get a fair and impartial trial in said county; that
deponent was on the jury which tried these defendants in June before,
[***7] and heard [*315] jurors discuss matters, as a
reason for the conviction of the prisoners, which were not in evidence before
the jury. It was argued in the jury room that Emilio Garcia killed a man in
Havana, though there was no evidence of such fact before the jury; that one
juror discussed in the jury room matters of fact of which he claimed to have
knowledge, out which were not testified to by any witnesses; that this same
juror told of matters of fact which he claimed to have learned from the
principal State witnesses, notwithstanding that he had sworn that he had no
conversation with any of the witnesses, and that this same juror discussed in
the jury room matters which he claimed to know by having been around with
leading witnesses for the State in search of evidence against the defendants;
that several of the jurors used as an argument with him, to influence him to
bring in a verdict of guilty against the prisoners, that the community expected
them to convict the said defendants; that after the verdict in said case was
rendered, it became known that the deponent was the only juror who had held out
for an acquittal, and had caused the disagreement of the jury, and that from
[***8] that time deponent began to suffer in his business, on
account of the part he had been compelled, upon his oath as a juror, to perform
in said case; customers left him, and others tried to influence more of his
customers to leave him on that account; that from all he had heard, and the
knowledge he had of the feeling existing throughout the whole community he did
not believe that the defendants could get a fair and impartial trial in said
county of Monroe. Peter T. Knight deposed that he resides in the city of Key
West, and is Clerk of the Circuit Court for the county of Monroe; that the
indictment against the above named defendants was found at the Fall term of
[*316] said Court in the year 1891, but that said parties were
arrested in the month of May, 1891, and that the said Emilio Garcia, and Jose
Rodriguez had a preliminary examination before W. A. Gwynn, a justice of the
peace, in the month of June of that year; that from the time said arrests were
made great excitement prevailed in the city of Key West over the affair, and
[**225] the whole community was aroused by inflammatory articles in
the local press against the defendants, calling upon all good citizens to help
[***9] see to it that they were at last brought to justice for a
long list of offenses of which said articles pronounced said defendants, and
especially the defendant Emilio Garcia, to be guilty, and that the community
was by that means rid of a gang of cut-throats and murderers, of which said
defendants were alleged to be numbered; that by means of such articles, and by
the active endeavors of certain persons in the community, the public mind was
so prejudiced and excited against said defendants that threats of lynching them
were openly made, crowds gathered around the jail and public meetings were held
at which large rewards were offered for the production of evidence which would
convict said defendants, and resolutions were adopted calling upon the State to
offer additional rewards for the same purpose, and every means employed to
violently prejudice and excite the whole community against said defendants.
That said defendants Garcia and Rodriguez were by the said justice Gwynn, at
said preliminary hearing, committed to jail without bail, and that a writ of
habeas corpus was thereafter sued out in said Circuit Court in behalf of said
defendants, and the sheriff of said Monroe county was, [***10] as
deponent was informed and believes, ordered by the judge thereof to produce
said defendants before him at Tampa, Florida, for the hearing of
[*317] said writ; that when it became known in Key West that said
order had been made, violent excitement again took possession of the community,
and a meeting was held at which it was resolved that said defendants should not
be allowed to leave the island, and a committee was appointed to notify the
sheriff to that effect, and that he would attempt to remove them at his peril;
that during the night when the boat was to leave, upon which it was thought the
attempt would be made to remove them, a large crowd of excited men surrounded
the jail, in numbers not less than five or six hundred, for the expressed
purpose of preventing at all hazards their removal, in obedience to said order
of the court; that said crowd, or portions thereof, continued to surround said
jail until the departure of said steamer, and during the greater part of said
night; and that among the members of said crowd threats of lynching said defendants
were frequently made, and great excitement prevailed; and deponent says that a
deep-seated and almost universal prejudice [***11] against the said
defendants has for a long time existed, and still exists, in the said county of
Monroe; and that he verily believes that the said defendants can not obtain a
fair and impartial trial before a jury of said county. That the total number of
legally qualified jurors in said county is not over nineteen hundred, and of
that number about six hundred or more are unable to speak or understand the
English language; that at the trial of Emilio Garcia, at the Spring term of the
court, 1892, venires summoning at least one hundred and thirty-five men were
issued and exhausted before a jury of twelve men could be empanneled, and that
during said trial the court room was crowded from day to day with citizens of
said county listening to said evidence, the number present averaging at least
four [*318] hundred, and the evidence as given was published daily
in the local press, and was the common topic of conversation among all the
people. That he believes that as a consequence of these facts it would be
impracticable to get a qualified jury in said county to try said cause.
Fernando Figueredo also deposed, corroborating most of the allegations of the
affidavit of Peter T. Knight, [***12] and also, in addition, that a
large reward had been offered by the County Commissioners of Monroe county for
evidence leading to the conviction of the defendants; that threats of lynching were
freely indulged in, and the prevailing sentiment was that defendants should not
be allowed to leave the island alive. Charles F. Dupont deposed that he was the
sheriff of said county of Monroe, and had been ever since the arrest of the
said defendants in the month of May, 1891; that the said Emilio Garcia and Jose
Rodriguez had a preliminary examination, on the charge for which they stand
indicted, before justice Gwynn in the city of Key West about the first of June,
1891, and that there was great excitement in the community over said
examination at that time; that said defendants were by said justice Gwynn
committed without bail to await the action of the grand jury. In a few days
thereafter a writ of habeas corpus was sued out in their behalf in the Circuit
Court, and deponent received a telegram from Hon. H. L. Mitchell, Judge of said
court, ordering him to produce said prisoners at Tampa, Florida, for the
hearing of said writ; that when it became public that said order had been made,
great [***13] excitement and very strong feeling was aroused in the
community against such removal, and this deponent was waited upon by a
deputation of persons who represented to deponent that they had been appointed
by a public meeting that day held to [*319] notify him that said
prisoners would under no circumstances be allowed to leave the island, and that
if he attempted to obey said order of the court, in removing them, he would do
so at his peril. And deponent says that it was his opinion from his knowledge
of the feeling of the community that said prisoners could not be removed by any
force at his command without bloodshed, and therefore after receiving said
notice he did not make any attempt to remove them, and gave his promise to said
persons that they should not be moved; notwithstanding which a large crowd
surrounded the jail in which said prisoners were confined, on the night when
the steamer left for said Tampa, and remained [**226] until after
the departure of said steamer, and during the greater portion of said night,
said crowd being very excited and expressing the purpose to prevent the removal
of said prisoners at all hazards, and numbering not less than five or six
hundred [***14] people. Jose C. Bolano deposed that he was a
citizen of the city of Key West, in said county of Monroe; that he has known of
the proceedings against said defendants since their arrest upon the charge of
murdering Jaime Mira in the month of May, 1891; that at the time of making said
arrests, and from then since, great excitement has prevailed in the community
over said murder, and violent and deep-seated prejudice has been formed therein
against said defendants; that said excitement has been increased and said
prejudice strengthened by articles published in the local press, alleging that
said defendants were members of a gang of murderers and outlaws who have been
guilty of a long series of crimes in said community, and urging the people to
take every means to secure the conviction of said defendants in this case, in
order to punish them for the many other crimes which it was claimed
[*320] they had committed, and to rid the community of the
dangerous band of which it was claimed they were members; that public meetings
have been held, at which resolutions were adopted recommending the offer of
large rewards by the proper authorities for the production of evidence leading
to their [***15] conviction, and organizing committees to assist in
obtaining that result; that large rewards were accordingly offered for the production
of such evidence as would secure the conviction of said defendants; and that
the public mind was thereby excited and prejudiced to that extent that threats
of lynching were freely indulged in, and the prevailing sentiment of the
community was that said defendants should not be allowed to leave the island
alive; and that on one occasion, in the month of June, 1891, a large crowd
gathered round the jail where said defendants were confined for the express
purpose of preventing them from being removed, by force if necessary. That said
prejudice against said defendants still exists, and is almost universal in said
community; that large crowds of the citizens have attended each of the several
hearings of said cause which have been held in Key West; that the evidence
given at said hearing has been published in the daily press and universally
read; and that on account of these facts deponent believes that said defendants
can not obtain a fair and impartial trial before a jury of said county, and
that it would be impracticable to obtain a qualified jury for
[***16] the trial of said cause therein. The defendants Emilio
Garcia, Jose Rodriguez and Camillo Sans deposed that they are the defendants in
this cause, in whose behalf the motion for a change of venue is now interposed;
that a deep-seated and universal prejudice against them prevails in said county
of Monroe, as shown by the [*321] other affidavits attached to this
motion, the matters set forth in which are true; and that they severally verily
believe that they can not obtain a fair and impartial trial in said county of
Monroe. N. B. K. Petingill deposed that he is one of the attorneys of record
for the defendants in this cause, and has been engaged therein since the first
arrest of the said defendants in May, 1891; that he was present at all the
hearings in said matter, and had charge of preparing the motion for a change of
venue presented herein at the last Fall term of this court, and filed December
1st, 1892, and of procuring affidavits in support thereof, setting forth the
occurrences which had transpired in the city of Key West tending to show
violent feeling and prejudice in said community against said defendants; that
he spent considerable time and much labor in trying to [***17]
procure said affidavits, and requested a large number of persons to make
affidavits to such facts as were known to them in connection therewith, but
with the exception of the four persons whose affidavits are attached to said
motion, no one would consent to do so; that nearly every one of the persons so
requested by deponent to make said affidavits admitted that they knew of the
matters desired to be sworn to and the statement of such facts which they were
desired to make was true and correct, but refused to make any affidavit or take
any part in favor of said defendants on the ground that the feeling against
said defendants was so strong in the community that any action in their favor,
however slight, would cause injury to them in their business, and might cause
them trouble in other ways; but not one of the persons requested to make
affidavit refused to do so on the ground that the matters desired to be sworn
to were untrue in any respect; [*322] that additional efforts have
been made before and during the present term of the court to obtain additional
affidavits in support of said motion, but the persons so requested to make the
same have refused to do so for the same reasons [***18] given
above, and it has been impossible, on account of the intense and universal prejudice
and feeling so existing, to obtain additional affidavits in support of said
motion. Peter T. Knight made an additional affidavit as follows: That he was
present during a part of the trial of the above cause at the Spring term of the
court aforesaid, A.D. 1893, and that J. R. Ricker was one of the jurymen
empanneled to try said cause at said term; that the said jury in said cause
failed to agree upon a verdict, and were discharged without agreeing, and it
was popularly reported and believed that the said J. R. Ricker was the juryman
refusing to agree to a verdict of guilty against the said defendants; that
within a few days after the final adjournment of said court for said term,
deponent heard citizens of [**227] Key West say that said J. R.
Ricker was being boycotted because of his action as a member of the jury in
said cause in refusing to convict the said defendants, and that it was right
that he should be; that about the same time as the above, or soon thereafter,
he heard numerous persons in the city of Key West, including several prominent
citizens of the said county of Monroe, soberly [***19] assert and
maintain that the said defendants, and especially the defendant Emilio Garcia,
should be convicted and hung on account of his general bad record, whether the
evidence of the particular crime charged in the indictment in this cause was
sufficient to prove guilt thereof or not; and deponent believes that the
opinion above specified prevails widely through the said county of Monroe, to
the prejudice of the said defendants in this [*323] cause.
Jefferson B. Browne also made affidavits which, with exhibits attached to the
same, was as follows: That the article, a copy of which is hereto attached
marked exhibit A, was published as an editorial in the Daily Equator-Democrat,
in the issue of Monday, December 12th, 1892, or very near that date; and that
the articles attached, and marked exhibits B and C, were published in the same
newspaper on June 13th, 1893; that said Equator-Democrat has taken an active
part in voicing and trying to form public opinion in the foregoing cause.
EXHIBIT A.
The Tampa Review puts a wrong construction on the Garcia case. Garcia was once
protected in this town and kept from being lynched by the law and order-loving
people of the place, with the [***20] understanding from the
sheriff that he would disobey the order of the judge of this circuit and refuse
to remove him. To have attempted to do otherwise, however, would have
precipitated what the cool heads were trying to avoid. Garcia can get a fair
and impartial trial in this city, and if he is acquitted here, and gets out of
the town within a reasonable time, he will not be molested, but he can not live
here; but, on the other hand, if there is an attempt to remove him to another county
for trial, we anticipate trouble, and it certainly would be unadvisable for the
governing powers to put the people of this community in a position of this kind
when they see as well as we what the consequences will be. We have proved that
the men are safe if tried in this county, and that they will be accorded a fair
trial, and we have presented to the judge of this circuit a petition setting
forth these facts, and signed by the leading citizens of the place. Judge
Sparkman has shown that he is a man of considerable tact; and we believe
[*324] that he will see the handwriting on the wall in this
instance, and not give the people of this town an excuse to wreak mob vengence
upon those who, [***21] if not guilty of this crime, have long ago
forfeited all claims to leniency. The following is the article of the Review:
Trouble is reported at Key West owing to the attempt to secure a change of
venue to this county in the case of Emilio Garcia before the bar on a charge of
the murder of Jaime Mira. Garcia was tried here some years ago for the murder
of Manuel Martinez, in the attack made upon the Knights of Labor at Ybor City.
He was acquitted and went to Key West, and in consequence of his doings in that
city the Cubans declare that he shall not leave it alive. Should a verdict of
acquittal be found, or an attempt be made to bring him to Tampa, a riot is
feared.
EXHIBIT B.
It is reported that about half the important witnesses in one of the murder
cases are not within call. A combination to defeat the ends of justice in the
State vs. Garcia and others will recoil upon the heads of those who are doing
it with terrible effect. These men are guilty -- the community knows it;
justice had better take its course.
EXHIBIT C.
There is a feeling in the city that some of the negro murders now confined in
the jail are to be convicted, and an outraged public thus appeased, so that
[***22] when Garcia and Rodriguez are put upon trial and cleared
nothing will be said by the public. If those who think this try it, they may
find that the lapse of two years has in no wise changed public opinion. The
public recognize the fact that since Garcia, Rodriguez and Sans have been in
jail, and the thirty other miscreants [*325] run out of this city,
that crime against other Cubans has well nigh ceased, while the city has been
free from assassinations. We are not ready to undo what has been done in the
past two years, and go back to the old days of blackmail and mysterious
murders.
It does not appear in the record that any evidence whatever was offered upon
the part of the State in contradiction of the affidavits offered upon the part
of the defendants. In matters of change of venue very much must be left to the
discretion of the trial court. As a general rule appellate courts will not
interfere with an exercise of the discretion by the court below in granting or
refusing motions for a change of venue, still the exercise of such discretion
is a subject of review by the appellate court, and it will interfere where
there is a palpable abuse or grossly improvident exercise [***23]
of such discretion. Greeno vs. Wilson, 27 Fla., 492, 8 South. Rep., 723;
McNealy and Roulhac vs. State, 17 Fla., 198; Irvin vs. State, 19 Fla., 872;
Adams vs. State, 28 Fla., 511, 10 South. Rep., 106; Williams vs. Dickenson, 28
Fla., 90, 9 South. Rep., 847. There being no showing of facts upon the part of
the State, or any apparent resistance to the motion, the problem before us is
whether, upon the statements contained in the affidavits offered by defendants,
the refusal to change the venue was such an abuse of judicial discretion as
calls for the interference of this court. Briefly summarized, the salient facts
[**228] of the affidavits offered by defendants are these: That the
defendants are Cubans; that strong feelings of prejudice and ill-will existed
between the Cubans and other inhabitants of the island of Key West; that few
Cubans speak English well enough and practically none are qualified to serve
upon juries in the county of Monroe; that the [*326] prevailing
sentiment of the community was strongly against defendants, and great prejudice
and feeling prevails against them in said county; that prominent citizens had
been heard to declare that the defendants ought [***24] to be
convicted on general principles; that one Ricker, who had sat as a juror in a
trial which had resulted in a mistrial, and who had been the juror who had by
refusing to find a verdict of guilty, caused such mistrial, had suffered in his
business on account of his action in such case; that said Ricker had been for
said reason boycotted in his business, and citizens of Key West had said that
it was right that he should be so; that much prejudice and excitement against
defendants had been aroused by inflammatory articles circulated in newspapers
against them; that said articles called upon all good citizens to see to it
that defendants were at last brought to justice for a long list of offenses of
which they, especially the defendant Emilio Garcia, were said to be guilty; that
defendants were alleged in said newspaper articles to be members of a gang of
cut-throats and murderers; and threats of lynching defendants had been openly
made; crowds gathered around the jail and public meetings were held, at which
large rewards were offered for the production of evidence which would convict
said defendants, and resolutions were adopted calling upon the State to offer
additional rewards for [***25] the same purpose; that on one
occasion a writ of habeas corpus had been sued out by the defendants, and upon
such writ the sheriff had been ordered to produce them at Tampa before the
Circuit Judge, for the purpose of hearing such writ; that when it became known
in Key West that such order had been made violent excitement took possession of
the community, and a meeting was held, at which it was resolved that the
defendants should [*327] not be allowed to leave the island, and a
committee was appointed to notify the sheriff that he would attempt to remove
them at his peril; that when it was thought an attempt would be made to remove
the prisoners to Tampa in obedience to the aforesaid order, a large crowd of
five or six hundred excited men surrounded the jail for the express purpose of
preventing removal of the prisoners in obedience to the order of the court, and
continued to surround said jail until the vessel, upon which it was intended to
remove the defendants, had sailed, and among said crowd many threats of
lynching the defendants were made; that only nineteen hundred registered voters
are in the county of Monroe, of which number six hundred or more are unable to
speak or [***26] understand the English language; that former
trials had been had of the case, at one of which a venire of one hundred and
thirty-five men was exhausted before a panel of twelve jurors could be
obtained, and that during the said trials the court house was crowded from day
to day with citizens hearing the testimony in the same; that a large reward was
offered by the county commissioners of Monroe county for evidence leading to
the conviction of the defendants; that a large mob had prevented the sheriff
removing the prisoners to Tampa in obedience to the aforesaid writ of habeas
corpus, and had forced the sheriff to give them a promise that they should not
be so removed; that persons had refused to make affidavits to be used upon
defendants' motion for a change of venue on the ground that the feeling against
the defendants was so strong in the community that it would cause them injury
in their business; that numerous persons in Key West, including prominent
citizens of said city, were heard to maintain that the defendants, especially
the defendant Emilio Garcia, should be convicted [*328] and hung on
account of his general bad record, whether the evidence in this particular case
was [***27] sufficient to prove guilt thereof or not. The extracts
from the daily Equator-Democrat sustain the allegations as to their
inflammatory character, the nature of which will directly be more particularly
noted.
The foregoing undisputed allegations, in our opinion, shows such a state of
feeling at the time in the county of Monroe as to have imperatively required a
change of the venue; and the refusal thereof was such a palpable abuse of
judicial discretion as to call for our interference. We do not think it likely
that a stronger case will ever arise under the statute. It can not be doubted
from the proof made on behalf of defendants, that the people of the island of
Key West which, in point of population, very nearly comprises the county of
Monroe, are greatly incensed against the defendants. Whether this exasperation
is justly or unjustly aroused against them does not affect the present purpose
of this decision, and we can not express our opinion upon the subject. In the
heart of nearly all people is a horror of crime. This is a worthy sentiment,
and it is but natural that it should lead to abhorrence of and antipathy
against those charged with odious crimes. It is upon this [***28]
principle that the mob whose intentions are not entirely bad when its
indignation against crime is aroused administers its wild and unreasoning
justice. But in a court of law naught should be heard but the voice of law and
reason. So the law which guarantees every man a fair trial ordains that whenever
the natural sentiment of abhorrence of crime is so aroused in a community that
it brings public odium and detestation upon the person accused of the crime, so
that the voice of law and reason might be lost amid the clamor of passion and
[*329] prejudice, [**229] the trial should be removed
to some other community not affected by such influences. When a proper case is
presented, to refuse such a change of the place of trial, would be mob law
inside, instead of outside, of the court house. It is said on the part of the
State that the defendants could secure a fair and impartial trial in the county
of Monroe, and as a demonstration of this contention, that they did secure such
a jury, having challenges still unexhausted when the panel was completed. It is
claimed that the judge had a right to make a practical test by attempting to
empannel a jury, whether a fair and impartial [***29] jury could be
obtained. We do not think such a course warranted by the law. The court must
determine the question upon the affidavits offered by the State and the
defendant. Our statute (R.S. sec. 2927) says: "When it shall appear to the
satisfaction of the court by affidavit that a fair and impartial trial can not
be had in the county where the crime was committed, the court may direct the
accused to be tried in some adjoining county." The law does not permit any
other test than a consideration of the evidence offered. Applications for
change of venue upon the ground that a qualified jury can not be had in the
county, which might perhaps warrant a practical test to be made, are governed
by the succeeding sections, 2928 et seq. See also Territory vs. Manton, 8
Montana, 95. It can not be contended that the excitement and feeling shown by
defendants' affidavits in this case were only a natural exhibition of the
horror of the crime of murder and secret assassination which exists in all
communities. The evidence is abundant to show that the prejudice and feelings
complained of existed against the individual defendants. In illustration of
this might be cited, besides the threats [***30] of lynching and
the actions [*330] of the mob in preventing obedience of the
sheriff to the writ of habeas corpus, the peculiar circumstances attending the
offer of rewards. This was a case of secret assassination. A reward was offered
by the county commissioners, not for evidence against the perpetrators of the
deed, whoever they might be, but for evidence leading to the conviction of the
defendants. A public meeting of the citizens requested the State authorities to
offer a like reward for evidence to convict the defendants. The newspaper
articles, which must be considered to some extent a reflex of public opinion,
are especially directed at defendants. It alleges that the defendant
"Garcia was prevented from being lynched by the law and order loving
people of the place, with the understanding from the sheriff that he would
disobey the order of the judge of this circuit, and refuse to remove him."
The newspaper quoted must have a strange standard as to what constitutes
"law and order-loving people." People can not be affected with a high
degree of love of law and order who only refrain from taking the law into their
own hands upon extorting a promise from an officer of the [***31]
law that he will disobey the writs of the court. These things could not have
been done by "the law and order-loving people" of the community. This
feeling is further evidenced by intimations in the article quoted that the
defendant Garcia would be molested if he was acquitted, unless he left the
city, and that there would be trouble if he were removed to another county for
trial; also by allegations that defendants were guilty, and that the community
knew it. This newspaper was no doubt influenced by worthy motives, a desire to
see crime punished, and justice administered in the locality where the crime
was committed. But the excess of its zeal, its dogmatic assertions of
[*331] the guilt of the defendants, and its inflamatory
denunciations of them, are likely to bring about such a state of public
sentiment as to defeat the very purpose intended. In a similar recent case the
Supreme Court of Oregon says: "It is extremely unfortunate to the cause of
justice that many of the newspapers of the country pursue the course they do
with reference to cases of homicide. They seldom fail to designate the
transaction as a murder, which of itself is a judgment, to the extent of
newspaper [***32] jurisdiction in such matters, that the slayor is
guilty of that crime without regard to the circumstances connected with it. And
they usually publish not only a detailed hearsay statement of the affair, but
decidedly indicate their own views regarding it. The result is, that by the
time the accused is arraigned for trial, the reading portion of the community
have generally formed and expressed an opinion concerning his guilt or
innocence; which renders it very difficult to secure an intelligent and
unbiased jury to try him by. In the case under consideration, the newspapers
referred to in the appellant's petition to postpone the trial, and for a change
of venue, assume, I should judge from the tenor of the articles made exhibits,
to decide how the case should be disposed of. The publishers of those sheets
appeared to have established a tribunal of their own in which to try the
accused; and in view of the extensive circulation of those papers, and their
high standing as public journals, it is difficult to conceive how an impartial
jury could be secured from the county where they are published, by which he
could be tried, especially after two trials had already been had." State
v. [***33] Olds, 19 Oregon, 397, text page 429.
Before disposing of this branch of the case we think it but fair to the Circuit
Judge who presided below to [*332] say that we have determined the
case upon the record before us. As a matter of course we could not have done
anything else. The counsel for the State in his brief says that other testimony
besides that shown by the record was before the [**230] court below
when it denied the motion for a change of venue. He states that such testimony
has been brought up in a supplement to the record filed here upon a return to a
certiorari issued upon a suggestion of a diminution of the record by the State.
No such suggestion or return is found in the record here. We find among the
papers, but not filed, nor shown to be here by any authority, a certified copy
of some papers sent here by the Clerk of the Circuit Court. They do not appear
to have been filed in this case in the court below. They are no part of the
record, and of course we can not consider them. If the statement of the States
counsel is correct, that other evidence was before the judge below besides that
brought up in the record, somebody is seriously in fault in not seeing
[***34] that a proper record was brought for our inspection.
Our views upon the ruling of the court refusing the change of venue disposes of
the writ of error, but as the case goes back for a new trial, and by so doing
we may prevent future errors, we notice some other points presented by the
record.
The 18th and 19th assignments of error arise from the following action of the
Circuit Court, as shown by the record. During the examination of Joseph P.
Salas, a witness for the State, counsel for the State moved the court
"that an examination of the premises be had, and that this witness (Salas)
be allowed to testify on the premises of this bar room, and that the jury
attend, in order that they may understand the situation there better."
Counsel for the defendants [*333] objected to this motion upon
several grounds, but the motion was granted by the court, and the court ordered
the jury to go to the premises described by the said witness, that he might
there continue his testimony. The defendants excepted to this ruling. Then the
court, the jury, the prisoners, the counsel in the case and the witness Salas,
and the stenographer proceeded to the premises known as Garcia's bar room. At
[***35] this bar room the witness Salas was examined further and
testified at length. Then the defendants made a motion for the jury to view the
premises where the body was found. This motion was granted, and the court,
counsel, defendants, witnesses and stenographer proceeded to another place
where the body of the deceased was shown to have been found, and after an
examination of witnesses at this latter place, all returned to the court room.
This unusual proceeding was supposed to be authorized by the statute (R.S.
2918). This section, which is probably the shortest in the Revised Statutes,
reads as follows: "The court may order a view by the jury." The only
other provision upon the subject is Section 1087 R.S., but it seems to be
applicable only to civil cases. In its form the motion upon the part of the
State was certainly objectionable. It did not ask for a view of the premises,
but that "an examination of the same be had, and that the witness be
allowed to testify on the premises." The order of the court directed that
"the witness might continue his testimony at the bar room of Garcia."
This was practically a removal of a portion of the trial to the bar room; and
the further motion [***36] of defendant removed another portion of
the same to the place where the body of Mira was found. The proper place for
the holding of court and the trial of criminal cases is the court house, when
there is one in the [*334] county for which the court is being
held. Hayward vs. Knapp, 22 Minn., 5, text page 7. It should not be removed to
any other place except by express legislative authority. This question of a
view of the premises where a crime is alleged to have been committed is a very
difficult one. There is a remarkable scarcity of precedents upon the point, and
the practice seems to have been unknown to the common law. A view of the
premises in a criminal case can not be had at all except by express statutory
authority. Smith vs. State, 42 Texas. 444; 1 Thompson on Trials, secs. 885, 881
and authorities cited. In a number of states where the statute provides for a
view of the premises upon which a crime was committed, the manner of making the
view is set out. All of them which have come to our knowledge provide that no
one shall speak to the jury about the matter of their investigation while
engaged in the performance of such duties. Some provide for an officer, and
[***37] some other person familiar with the localities, to simply
point out to the jury the places about which testimony has been taken. People
vs. Bonney, 19 Cal., 426; People vs. Green, 53 Cal., 60. Our statute is so
meager that it furnishes no guide to the manner of making the view permitted by
it. In the absence of any statutory provision, or rule of court, if a view of
the premises is ordered, it should be a view pure and simple. No examination of
witnesses should be had outside of the court room. The statute being one in
relation to criminal proceedings, should be strictly construed. There is some
conflict of authority as to whether it is necessary for the defendants to be
present on such occasions. It can, however, be said that their presence, if not
necessary, is not improper. The safest course if to have them present. Thompson
on Trials, secs. 886, 887. The proper rule, [*335] we think, has
been laid down thus in Dowd vs. Guthrie, 13 Bradw. (Ill), 653: "In the
absence of legislative provisions, describing the mode in which jury views are
to be conducted, the court is of the opinion that it is more in consonance with
the theory and methods of judicial trials that the [***38] jury
should base their findings solely upon sworn testimony in open court, or by
depositions taken as provided by law." We have, after considerable search,
been unable to find a case in which examinations of witnesses have
[**231] been permitted before the jury while away from the court
house engaged in taking a view. The Supreme Court of Massachusetts seems, by
implication at least, to have entertained the same view of the case that we
have just announced. That State has a statute very similar to ours. The exact
language of their statute is: "The court may order a view by a jury
empanneled to try a criminal case." In the celebrated trial of Prof.
Webster for the murder of Dr. Parkman the court upon application upon the part
of the State for a view by the jury of the premises where the murder was
alleged to have been committed, said that it had no doubt of its authority
under the above statute to grant such view if deemed expedient. On adjourning
for the day "the court directed that the jury should be permitted to take
a view of the medical college on the next morning before the coming in of the
court, attended by two officers and one counsel on each side." This
proceeding was [***39] upheld in the appellate court. 1 Thompson on
Trials, sec. 885; Commonwealth vs. Webster, 5 Cush., 295, S.C. 52 Am. Dec. 711.
Further than was done in the Massachusetts case, we apprehend that the extent
to which the court should go, beyond directing a mere view of the premises, is
to send some person to be agreed upon by the parties, or appointed by the
[*336] court to go with the jury, and point out the premises to
them. This was the practice under ancient English statutes in real actions, and
the brevity of our statute implies that the Legislature intended to extend the
civil "view" to criminal cases.
The defendants offered evidence which tended to prove an alibi for some of
them. Their counsel in presenting the case of the jury stated that such
evidence was not intended to prove an alibi, but to contradict the statements
of some of the State's witnesses. The court charged upon the subject of alibi.
The defendants' counsel excepted on the ground that as they had disclaimed any
intention to prove an alibi, that the court should not charge at all upon that
subject. We do not assent to this view. The court should charge the jury upon
the law as applicable to the evidence [***40] given by the
witnesses. It is not bound to accept the construction placed upon such evidence
by counsel. Of course the court should not state that the defendants offer
proof of alibi, when only two of them do so, but should make the language of
his instructions to the jury correspond with the facts of the case.
An assignment of error is taken upon the following charge given by the court
below, viz: "Where an alibi is set up, the burden of proof is on the
defendants. But the defendant or defendants are not bound to prove it beyond a
reasonable doubt; but if the evidence offered by the defendants or either of
them to establish an alibi, taken in connection with all the testimony in the
case, raises a reasonable doubt in your minds of the presence of the
defendants, or either of them, at the commission of the crime, then it will be
your duty to acquit all or such of the defendants as you so believe not to have
been present at the commission of the [*337] crime." The
latter part of this charge is misleading and objectionable. In any future trial
the latter portion reading thus: "as you so believe not to have been
present at the commission of the crime," should be omitted. In
[***41] their place should be the words "to whom such
reasonable doubt applies." Murphy vs. State, 31 Fla., 166, 12 South. Rep.,
453.
The judgment of the Circuit Court is reversed and a new trial awarded.
CONCURBY: MABRY
CONCUR: MABRY, J.: (Concurring).
The record before us shows affirmatively that three applications for a change
of venue of the case were made and refused, one at the June term, 1893, one at
the Fall term in November, 1893, and another at the Spring term, 1894. At the
last term mentioned it appears that the accused were convicted, and the writ of
error now before us is from the sentence imposed on them after conviction. The
bill of exceptions in the record contains the proceedings at the trial at the
Spring term, 1894, and it shows that affidavits made on former applications,
for change of venue were refiled on the renewal of the application in 1894, and
also that new affidavits were then filed. Among the new ones filed are
affidavits of affiants in the refiled affidavits made on former applications
for a change of venue, to the effect that the statements therein contained are
still true and applicable to said cause as when they were made. Giving due
consideration to all the [***42] affidavits before the court on the
application in 1894, as [*338] shown by the record before us, I
think the court should have granted a change of venue, and I concur in the
conclusion that the refusal of the court to order the venue changed was error.
I concur also in the conclusions on the other points.