Opinion
September 29, 1950. Rehearing Denied November 8, 1950.
Appeal from the Circuit Court, Bradford County, John A.H. Murphree, J.
James S. Wershow, Gainesville, H.O. Brown, Starke, and Benmont Tench, Jr., Gainesville, for appellant George Wolfork, Jr.
Scruggs Carmichael, Gainesville, for appellant L.D. Robinson.
Carlos E. Harper and Osee R. Fagan, Gainesville, for appellant Walter McDonald.
Richard W. Ervin, Attorney General, and Reeves Bowen, Assistant Attorney General, for appellee.
The three appellants were indicted, convicted of murder and sentenced to death. They have each severally appealed.
All appellants were Negroes. The victim of the murder was a white man.
Appellant Wolfork first questions the legality of the jury venire because he claims members of his race were purposefully excluded. The State joined issue on this and testimony was taken. We will not detail the evidence. We have examined it and find it sufficient to sustain the trial judge's conclusion that no discrimination had been shown under the well recognized holdings in Patton v. Mississippi, 332 U.S. 468, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286, and Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692.
Appellant Wolfork next claims error in denying him a severance. His unsworn motion also was deficient in substance and will not warrant us in holding the trial court in error in the exercise of its discretion under our holdings in Sawyer v. State, 100 Fla. 1603, 132 So. 188.
The next question relates to the legality of a confession. Wolfork was taken into custody about five days after the murder. He was placed in the state prison at Raiford and while there made the confession. The Circuit Judge took testimony pro and con before ruling that the confession was admissible. We have reviewed the evidence and are satisfied that the confession was admissible and the ruling was free from error.
The final question relates to the sufficiency of the evidence. The uncontradicted evidence showed that these three appellants were friends and associates; that the three of them were together the day of the murder and were seen in the store operated by the murdered man immediately preceding the killing. They went there armed with a pistol which appellant McDonald had previously procured in the State of Georgia. The three of them entered the victim's store armed with the pistol for the purpose of robbery. While perpetrating the robbery one of them shot and killed Mr. Silcox. Wolfork's car was parked near by. Immediately after the killing the car moved away at great speed. When Wolfork was arrested a pistol, which expert witnesses identified as the pistol which killed deceased, was found in his car. It was the pistol which appellant McDonald had gotten in Georgia.
We have considered all the testimony and find it sufficient to sustain the verdict. It follows, therefore, that the judgment as to appellant Wolfork is free from error.
Appellants Walter McDonald and L.D. Robinson question the admissibility of their confessions and the sufficiency of the evidence as did Wolfork. What we have said as to Wolfork in this regard applies also to both of these appellants.
We have duly considered the entire record and find competent evidence to sustain the conviction of all three appellants and find no error of law requiring a reversal of the judgments.
The three judgments upon appeal are therefore
Affirmed.
TERRELL, CHAPMAN, SEBRING HOBSON and ROBERTS, JJ., concur.
THOMAS, J., dissents.
Foul as this murder was I cannot bring myself to agree to an affirmance because I think the confessions obtained in the "flat top" were not so free and voluntary as to be admissible in evidence.