Opinion
December 11, 1951.
Appeal from the Circuit Court for Manatee County, Lynn Gerald, J.
George O. Lea, Bradenton, for appellant.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
The appellant, Coy McMann, was charged with the first degree murder of a woman who, according to the testimony of several witnesses, was his putative common law wife. The verdict of the jury was one of guilt without recommendation of mercy. The trial judge entered a judgment consonant with the jury's verdict and sentenced the appellant to death by electrocution.
In his motion for a new trial counsel for appellant who was appointed by the Court because Coy McMann was a pauper, took the position that the state's attorney in his argument to the jury made a remark which was prejudicial to the appellant (defendant below) and because of such prejudicial remark the verdict, judgment and sentence consequent thereupon should be set aside and a new trial granted. The statement which counsel considered prejudicial does not appear in the transcript of record.
Counsel for appellant contended in his motion for a new trial and insists upon this appeal that he objected to the state's attorney's remark at the time it was made. In the motion for a new trial counsel quoted as accurately as he could remember the remark which he maintains was made. We quote counsel's recollection of the state attorney's comment: "Ladies and Gentlemen of the Jury, I can do my full duty, which I strive to do, and you can do your duty and then the Pardon Board will have them back here in a day or two." In this Court for the first time counsel presents his own affidavit and that of another attorney, who may be classified as a bystander at the trial, in support of the averments of his motion for a new trial.
We have repeatedly held that we will not consider any matter which is not disclosed by the transcript of record. However, were we to assume that the alleged statement was made by the prosecuting officer, we are of the opinion that it would not justify a reversal. At most, it was harmless error.
In his argument to the jury counsel for appellant apparently made a stronger plea for a recommendation of mercy than he did for a verdict of not guilty or one finding the defendant guilty of a lesser offense included in the charge of murder in the first degree. It was in answer to counsel's plea for a recommendation of mercy that the state's attorney allegedly made the asseverated prejudicial utterance.
We do not commend the practice of making remarks of the character of the one which was reputedly made by the state's attorney in this case. In some cases such a statement might be held to be so prejudicial as to require a new trial or a reversal by this Court, however, in the instant case the evidence so overwhelmingly established that the appellant was guilty of first degree murder as to cause his counsel to fail to insist upon or argue the assignment of error directed to the question of the sufficiency of the evidence to support the verdict. The testimony is so conclusive of appellant's guilt as to force us to decide that a majority of the jury, Section 919.23 Fla.Statutes 1941, F.S.A., as reasonable men and women could not possibly have seriously considered a recommendation of mercy in any event. Under such circumstances the comment, if it might be said to have been prejudicial, did not amount to harmful error.
We have carefully considered the briefs of counsel, have studiously reviewed the transcript of the evidence, as it is provided in Section 924.32(2) we shall do, and have reached the conclusion that the interests of justice do not require the granting of a new trial.
Affirmed.
SEBRING, C.J., and TERRELL, CHAPMAN, ROBERTS and MATHEWS, JJ., concur.
THOMAS, J., agrees to the conclusion and judgment of affirmance.