Opinion
July 29, 1952.
Appeal from the Circuit Court for Leon County, Ira A. Hutchison, J.
Robert M. Ervin of Ellis, Ervin Wakeman, George W. Atkinson, of Atkinson Atkinson, Bart Cohen, and J. Lewis Hall, Tallahassee, for appellant.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
The jury returned a verdict of guilty against the appellant on the charge of armed robbery. Motion for new trial was denied, proper judgment entered, and this appeal resulted.
Appellant seeks reversal upon two grounds: (1) that Deputy Sheriff Cecil Gatlin was a material witness for the State and was, also, the Bailiff in charge of the jury, taking his meals with the jury and spending the night with the jury at the Floridan Hotel, and (2) the State introduced a confession of the defendant, appellant here, and the Court sustained objection to questions on cross examination attempting to bring out all of the statements made by appellant at the time of such confession.
With reference to the first assignment of error in connection with the motion for a new trial, the appellant filed with the Court below an affidavit made by the deputy who acted as Bailiff in charge of the jury. Said affidavit is as follows:
"Before me, the undersigned authority, personally appeared Cecil C. Gatlin, who being by me first duly sworn, deposes and says that he is Deputy Sheriff in and for Leon County, Florida; that on the 21st and 22nd day of August, A.D. 1951 he acted as bailiff for the jury which was impanelled and sworn and was trying the above styled cause; that he was not specifically sworn as bailiff on the particular case but was excused from the rule sequestration of witnesses by the consent of the defendant at the time other witnesses were put under the rule sequestration of witnesses; that as part of his duties as such bailiff he spent the night at the Floridan Hotel where the jury was staying; that said jury slept in three rooms at said hotel all adjoining with the doors between the rooms left open and that said affiant slept on a cot in one of the rooms; that said affiant arranged for and had two meals with said jurors; that said affiant as such Deputy Sheriff investigated said alleged robbery in this cause and testified at the trial of said case as a witness for the State of Florida; that no objection was made at, during or before said trial in the presence of affiant to his so acting as bailiff and that he was specifically excused from the rule sequestration of witnesses upon the agreement of the defendant; that affiant did not discuss the facts of said case with any of the jurors nor did any of the jurors discuss the case with affiant and that affiant in no way, directly or indirectly, did anything to influence the jury in its decision while acting as such bailiff."
The appellant relies upon the case of Owens v. State, 68 Fla. 154, 67 So. 39, 40. The facts in the two cases are materially different.
In the case at bar at the very beginning of the trial Gatlin was placed in charge of the jury and was excused from the rule applicable to all other witnesses. His testimony was pertinent but not material in that it simply corroborated the testimony of other witnesses. He did not display any undue interest in the trial and did not attempt in any way to assist the State Attorney or Assistant State Attorney in the prosecution of the case, as shown by the evidence offered by the appellant in the Court below, which is the only evidence with reference to the activities of Gatlin. It affirmatively appears that the jury slept in three rooms at the Floridan Hotel, which rooms were adjoining with all doors between them open; the Bailiff slept on a cot in one of the rooms; he arranged for and had two meals with the jurors; that no objection was made at, during or before the time of the trial to his acting as Bailiff, and that he was specifically excused from the rule of sequestrating the witnesses upon the agreement of the appellant; he did not discuss the facts of the case with any of the jurors nor did any of the jurors discuss the case with him, and he in no way, directly or indirectly, did anything to influence the jury in its decision while acting as such Bailiff.
It is significant that the appellant at no time offered any objection to the Bailiff being in charge of the jury until the motion for new trial was filed with the supporting affidavit above mentioned. Anyone who has ever attended a criminal trial which lasted two days knows of the duties and activities of a bailiff with reference to a jury. Frequently, short recesses are had when the Bailiff takes charge of the jury and carries them to their room; he administers to their needs such as supplying water and making the jury room comfortable for them and making lavatories accessible for them. When the jury left the courtroom for meals, appellant's attorneys necessarily knew that the Bailiff would be in charge of them and would go with them to their meals. The appellant was bound to know that the Bailiff would be in charge of the jury when it was necessary for them to sleep overnight.
We have a different state of facts in the case of Owens v. State, supra. In that case Deputy Sheriff Cellon, the Bailiff in charge of the jury, sought out Mr. Broome who was assisting the State's Attorney in prosecuting the case and whispered something in Mr. Broome's ear with reference to the case. The Court promptly removed Cellon as Bailiff and appointed Bruton in his place. Later Deputy Sheriff Beach was substituted for Bruton. Soon thereafter defense counsel called the Court's attention to the fact that Beach was acting in an extremely hostile manner to the defendant. The Court promptly removed Beach as Bailiff.
It appears that Beach and Cellon had charge of the jury the first night and ate supper with them and Beach and Bruton had charge of the jury the second night and had supper with them. These irregularities happened notwithstanding Beach had been removed by the Court before he had supper with the jurors the second night. In the Owens case, the Court said:
"It also appears that Beach went with the jury to supper on each night, the first night with Cellon and the second night with Bruton, and ate with them, the second night, when he had been removed as bailiff, still being at supper and eating with them."
In the Owens case there was a conflict in the evidence upon material questions. There is no conflict in the evidence in the case at bar. In the Owens case the Sheriff's deputies acted in an irregular, improper and prejudicial manner while in charge of the jury. They were overzealous for the prosecution and actually were in contact with the jury after they had been removed by the Court.
Although, in the Owens case this Court said, "It was manifestly improper for Beach, who was a material witness for the prosecution, to have charge of or to be with the jury", each case must stand upon the facts disclosed by the record. The facts in the case at bar are so materially different from the facts in the Owens case that it is not controlling here. The reversal in the Owens case was because there was a conflict in the evidence upon material points and some of the Sheriff's deputies acted in an irregular and improper manner while in charge of the jury as Bailiffs and were overzealous for the prosecution. The law must be applied to the facts as they are shown by the record. It does not appear from this record that the appellant was prejudiced in any way by Deputy Sheriff Gatlin being in charge of the jury and as set forth in this record does not constitute reversible error.
As to the second question, it appears that the State introduced an oral confession in evidence. On cross examination of the witness testifying about the oral confession he was asked only one question which was answered as follows:
"Q. Mr. Brown, at the time you arrested this defendant, is it not true that he also confessed to a robbery in Bartow? A. Yes, sir, it is."
Attempt was then made to question the witness further about the robbery in Bartow. The State objected to the cross examination about what may have happened in Bartow on the ground that it was not in cross and if the appellant desired to ask such questions, he should make the witness his own witness. The appellant urges that everything which was said in his oral confession should have been put in evidence and in appellant's brief it was made clear that the reason he desired the evidence to appear with reference to the alleged robbery in Bartow was to then show that the defendant did not commit the robbery in Bartow and the confession being false as to the robbery in Bartow, it was likewise false as to the charge upon which he was being tried.
The appellant was not being tried for robbery in Bartow but only for robbery committed in Leon County and parts of the confession with reference to an alleged robbery in Bartow were not admissible. 20 Am.Jur., p. 426, Sec. 488.
There is no merit in this assignment of error.
Affirmed.
SEBRING, C.J., ROBERTS, J., and FUTCH, Associate Justice, concur.