Opinion
December 22, 1950. Rehearing Denied January 16, 1951.
Appeal from the Circuit Court for Citrus County, F.R. Hocker, J.
Whitaker Brothers and W.N. Burnside, Tampa, for appellants.
Richard W. Ervin, Atty. Gen., and Murray Sams, Jr., Asst. Atty. Gen., for appellee.
Appellants were tried and convicted on an information charging that they did unlawfully take, steal and carry away a calf of the bovine species, the property of Ruth E. Smith. As a prelude to the trial the court called two bailiffs and instructed them to take charge of the jury, one of whom was a Negro, and keep them together. The sheriff was directed to make provision for their feeding and lodging during the trial. At the conclusion of the State's case a motion for directed verdict in favor of defendants was overruled. Defendants offered no evidence. The jury returned a verdict of guilty as to each, a motion for new trial was overruled and a sentence of two years in the State penitentiary was imposed. This appeal is from that judgment.
The record and the briefs have been thoroughly considered and Mr. Chief Justice ADAMS, Mr. Justice THOMAS, Mr. Justice SEBRING and Mr. Justice ROBERTS are of the view that the judgment should be affirmed as to the defendant Phillip Cacciatore. Mr. Chief Justice ADAMS and Mr. Justice SEBRING are of the view that the judgment should be affirmed as to defendant, Salvatore T. Tarallo and Mr. Chief Justice ADAMS is of the view that the judgment should be affirmed as to the defendant Bennie Calderone. Mr. Justice TERRELL, Mr. Justice THOMAS, Mr. Justice CHAPMAN, Mr. Justice HOBSON and Mr. Justice ROBERTS are of the view that the judgment should be reversed as to defendants Tarallo and Calderone. Mr. Justice TERRELL, Mr. Justice CHAPMAN and Mr. Justice HOBSON are of the view that the judgment should be reversed as to all three defendants because the confession as to Cacciatore was unlawfully secured and the constitutional guaranty of fair trial was denied them.
It follows that the judgment is affirmed as to defendant Cacciatore and it is reversed for a new trial as to defendants Tarallo and Calderone.
ADAMS, C.J., and TERRELL, CHAPMAN, THOMAS, SEBRING, HOBSON and ROBERTS, JJ., concur.
I concurr in the order of reversal but I think it unfortunate that it fails to discuss the questions raised, particularly the charge that discrimination was practiced on the Negro juror during the trial. The major portion of appellant's brief is devoted to this point. The record shows that there was confusion as to the applicable law and I think we are on notice that the trial courts will be confronted with the question in the future. When this is the case it should be adjudicated in order that the error may not again recur. The law requires the jury to "sit together" and hear the pleadings, proof and other aspects of the trial. The court in his discretion, may order the jury placed in charge of a bailiff to keep them together and see that no one from the outside communicates with them. When this is done the bailiff is required to make provision for their meals and lodging during the trial.
It is not denied that the jury sat together and heard the pleadings, proof and charge of the Court but it is contended that they were separated when provision was made for lodging, in that they were required to sleep in separate rooms and that when meals were provided the Negro juror was required to eat in a "cubbyhole" separated from the dining room where the white jurors ate. I do not think the fact that the jury slept in separate or adjoining rooms with a door open between them, as the record shows, violated the requirement that they be kept together during the trial. The purpose of this requirement is to remove the danger of outside communication with the jury or any member of it and the number of rooms they occupy is not material so long as they are under the supervision of the bailiff and are not communicated with. The task imposed on the bailiff is to treat all jurors alike, keep them together and exercise such supervision over them as to prevent outside communication with them.
As to the charge that the Negro juror was required to eat in a "cubbyhole" separated from the dining room where the white jurors ate, it is pertinent to point out that the alleged "cubbyhole" was a corner or sector of the dining room. It was created by setting up a buffet to isolate the Negro juror from the white jurors and others who might be in the dining room at the time. I find nothing in the record that convinces me that this procedure affected the verdict in this case, but I think it was bad practice and in many instances might have a serious effect on the verdict. Whether or not it does so would depend on the Negro juror's intelligence and emotional reaction. If he is stupid and untutored such discrimination would likely make no difference, if he is intelligent enough to be a competent juror it would make plenty of difference.
There are practical considerations that will confront the bailiff in every community where he meets this question. If the county has made no provision for such a contingency, I think he can do so within the law by providing such dining and lodging facilities as will enable him to keep supervision over the jury and prevent outside communication with it. I do not think the Negro juror should be required to eat in anything that savors of a "cubbyhole", neither should he be placed in an environment that in any manner tends to humiliate or otherwise subtract from the place of importance his station as a juror clothes him with. Serving on a jury is a civil responsibility that the law imposes on white and colored alike so we are concerned here only with the law regulating such service. The law of segregation as defined in this State is in no way involved. Segregation in Florida is in the main concerned with separate schools for whites and coloreds and the prohibition of intermarriage between members of the two races. Social taboos are in another category, but neither has any more place in this case than Newton's law of gravitation.
The verdict of a jury is the composite judgment of six good and true men as to which party to the controversy offered the more convincing legal proof. I have serious doubt of its being a composite judgment if the Negro juror is isolated during part of the trial in such a way as to arouse personal resentment at his treatment. In fact, I doubt that the weight of his judgment contributed anything to the verdict under such restraint. The very gist of our constitutional tradition is equality before the law, trial by jury, the worth and freedom of the individual and justice by due process of law. To insinuate taboos in the trial of a case that are calculated to arouse racial or emotional resentment is contrary to every concept of fair trial and may destroy confidence in that phase of the administration of justice.
In this country jury duty is one of the many aspects in which democracy works. Making democracy work is the business of every citizen. It is not partial to any race, creed or color because all have had a part in its creation. In respect to the duties and responsibilities of citizenship, the state and Federal constitutions make no distinction between white and colored citizens. Every racial and religious group that came to this country has contributed greatly to the stability, vigor and effectiveness of the freedoms that constitute democracy. We should be the last to embarrass or discriminate against any of them in the performance of jury duty. Unless it be tinkering with the ballot, corrupting a jury's verdict is the surest may I know to destroy confidence in democratic processes.
As for the Negro juror he has a claim for fair treatment peculiar to himself. He was not indigenous to this country, neither did he come here voluntarily. He was yanked out of Africa by the white man and brought here against his will. The early ancestors of the present Negroes were here breaking new ground and ploughing tobacco and cotton when the Mayflower landed at Plymouth. The first white men they ever saw were the ones that shackled and brought them to this country. They were pagans, unschooled in moral precepts. Their belief in God, their language, their morals and their religion were imbibed from the white man. The seed of their vices and virtues were sown by the white man. Every phase of his culture is a product of the white man's teaching. He has hewn his share of wood and he has drawn his share of water. He spent 250 years as the white man's slave, he was manumitted 87 years ago and has excelled in many lines of endeavor. Some of them were revolutionary soldiers and they have played a part in every war this country has been engaged in. History records that the first man killed in the revolution was a Negro. I think he has established his right to sing the Star Spangled Banner, to claim this as his country and feel a just pride in the performance of every civic duty the law imposes on him.
In fine, the question sums up to this: The law in explicit terms prohibits discrimination, on racial grounds, in the selection of a jury. The law also requires that when a jury is selected every precaution shall be observed to aid it in reaching a fair and lawful verdict. The Court may designate a bailiff to see that such precautions are observed. When the jury is composed of whites and Negroes all should be treated alike but this does not mean that they must be fed from the same table or required to sleep in the same room. The bailiff may exercise a reasonable discretion in this and may fit that discretion to the circumstances with which he is confronted but in doing so he is not permitted to impose conditions on a Negro juror that tend to humiliate or embarrass him or that in any wise detract from his responsibility as a juror. His concern is that everything be done to encourage a righteous verdict and that nothing be done to impede it.
I therefore concur in the judgment.