North v. State (65 So. 2d 77, 1953)

MATHEWS, Justice.

This case results from the death of Mrs. Betty Albritton at her farmhouse in Polk County under mysterious circumstances. Only the appellant and Mrs. Albritton‘were present at the time of her death. The appellant was indicted by a Grand Jury of Polk County, Florida, for murder in the first degree. He was tried in the Circuit Court of that county and the jury returned a verdict finding him guilty of murder in the first degree without any recommendation for mercy. ■

On the second day of the trial the appellant filed motion for continuance which was denied. This motion and the order thereon will he discussed later in this opinion. . .

After the verdict, the appellant filed a motion for new trial alleging certain facts which will be more fully stated hereafter. The State filed responses to such motion. The trial Judge proceeded to take testimony on the issues raised by the motion for new trial and the responses filed by the State, -after which he entered an order denying the motion for a. new trial. The Court then adjudged the appellant guilty of murder in the first degree and sentenced him to death in the electric chair. This appeal is from the judgment and sentence.

The appellant has propounded eight questions on the appeal. We shall not consider the questions .as they .are numbered in the briefs but shall consider them in what we believe to be a more logical order.

The first question for ■ consideration is whether the trial court,. committed prejudicial error in excusing prospective jurors in advance of the trial from responding to their summons, where such action on the part of the court took- place without the knowledge and consent of the defendant and his counsel and in their - absence.

In respect to this question, it appears from the record that a jury venire of 150 names was drawn from the lot. Under the law as it existed at the time of this trial, Section 40.36, F.S.A., a regular venire consisted of such number of persons as the Judge should deem necessary or expedient for a jury, venire. The appellant .does not disclose whether this was a special or a regular venire, and hence we will assume that it was a regular venire.

The- record shows that before the prospective jurors were examined on their voir dire, the attorney for the appellant announced to the Court that he would like to make a motion for the record; however, the record fails to show that he ever made any such motion. He did make the statement to the Court to the effect that the jury panel of 150 names had been reduced to 43, that many jurors had been excused in open court and that the Judge had excused some jurors before the case was called for trial in the absence of -the defendant and without notice to him and-without his consent and without -requiring their excusés to be made under oath. Because of the gravity of the issues involved we will treat these proceedings as being an objection timely made to the action of the Court in excusing the jurors. In connection with this objection the trial Judge stated:

“The Court will say this: That in. numbers of cases the party is absolutely unable to come to court to give his excuse. He would- have to be brought' in by ambulance- and on a stretcher.There are some cases of that kind. The Court has always excused jurors who would give an 'absolutely valid excuse as to why he should not be required to serve ■ just the same as he does in open court, and the Court will follow this practice unless and until it is held that it is error.”

The trial Judge has a broad discretion in excusing prospective jurors for reasons personal to such persons. A defendant in a criminal case is not entitled

to any particular juror or jury. Mathis v. State, 45 Fla. 46, 34 So. 287; Davis & Youngue v. State, 90 Fla. 322, 105 So. 845; 14 Am.Jur. 902; Criminal Law, Sec. 194; Maxwell v. State, 89 Ala. 150, 7 So. 824; Parker v. State, 201 Miss. 579, 29 So.2d 910.

The appellant places great reliance upon Sec. 914.01(3), F.S.A., which provides that in all prosecutions for a felony, the defendant-shall be present:

“At the ¿ailing, examination, challenging, impaneling and swearing of thé jury”.

Excusing jurors is no part of the calling, examination, challenging, impaneling or swearing of the jury; therefore, it is not necessary that the defendant be present when prospective jurors are excused by the trial. Judge.

Appellant relies upon the case of Adams v. State, 28 Fla. 511, 10 So. 106, 117, where this Court said:

“He has the right to be present and" to- hear questions of law as well as questions of fact discussed, and in. fact no steps can be taken in the case in his absence. The court must see in capital cases that the accused is present before any proceeding’s are taken in the case.”

The record shows that after court was opened the appellant was present at. all times to hear questions of law as well as questions of fact discussed and it is not made to appear that any step was taken in the case in the absence of the defendant. The case of Adams v. State, supra, is not susceptible of the construction placed upon it,by the appellant. The language used by the Court in that opinion that “the court must see in capital cases that the accused is present before any proceedings are taken in the case” means in,' or during, the trial of the case, and is not susceptible to a construction that the accused must be present when jurors’ names are drawn from the box, or when the sheriff serves the prospective jurors, or when the trial Judge in the exercise of a broad and sound discretion excuses a juror for good and sufficient reasons determined by the trial Judge.

We hold that the appellant was not prejudiced by the trial Judge excusing jurors in his absence and the same did not constitute error.

The second question: Did the trial court commit prejudicial error in denying defendant’s motion for a continuance and not granting, sua sponte, a change of venue, particularly, when the Tampa Morning Tribune, a newspaper that was available to prospective jurors, published a front page article on the morning of the second day of the trial proceedings, in which it falsely stated that the defendant was charged with poisoning the deceased and that the defendant had killed his first wife with a pump gun and was then under investigation for such homicide?

It appears from the record that on September 4, 1951 the examination of the jurors on their voir dire began and eleven jurors had been tentatively selected before the recess of the Court for the night. On the morning of September 5, 1951, the appellant filed a- motion for a continuance. This motion was • based upon an article which appeared in the Tampa'Tribune-on September 5, 1951, which, according to the motion, contained untrue and inflamatory statements about the ’appellant and about the case. The motion is lengthy and the article appearing in the Tampa Tribune on the date in question appears in the record. No purpose could be served by copying the same in this opinion.

The trial Judge made the following order on the motion for a continuance:

“Upon the said motion presented at this time for a continuance of this case until the next term of court on account of the fact of an article carried by the Tampa Tribune in the issue of September 5, 1951, the Court has considered said motion and has considered the facts appearing to the Court from said motion and from the trial of this case up to this time.

“The day was spent yesterday, September 4th, in ■ qualifying and tentatively impaneling the jurors for the trial of the case with the result that at the close of the day eleven jurors had been tentatively placed in the box but the panel, of course, has not been closed and this motion is presented at the beginning of the trial on September 5th.

“At this time and upon consideration of said motion when it does not appear whether or not any of the prospective jurors or jurors tentatively in the box have read the said issue of the Tribune on September 5th, this date, and when the panel is still open for re-examination of each and every individual juror tentatively seated in the box at this time as well as for all prospective jurors summoned and subject to examination on voir dire as to their qualifications to serve in this case the Court feels that nothing would be gained by continuing the case to another day. Everything that has happened in this case at this time might happen just as well immediately before the convening of any jury at any time to try a case of • this kind and if ■ newspaper articles published with regard to ah approaching trial, or a trial in progress even, will result in each such case being continued the courts will be greatly handicapped -in ever completing trials' of important cases.

“In this case the Court will’be extremely careful to extend every degree of the greatest fairness to this defendant in allowing counsel for the defandant to question every juror tentatively in the box as to, first, whether or not such., juror has read the article of September Sth in the Tampa Tribune and, after that, if it appears that any juror does not qualify to' the satisfaction of. counsel for defendant with regard to any influence or any inerasable impression upon such juror made by this article of the Tribune, the Court will excuse such juror for cause from sitting in this case. Every juror tentatively in the box might possibly be excused for cause if it is shown that because of this article he might be influenced to the very least degree in making or bringing in a verdict in the case. The motion for continuance is denied.”

The motion for a continuance did not charge that the newspaper article had been read by any of the eleven jurors tentatively’ selected or by any of the prospective jurors. There was no effort made by the appellant to prove that any of them had read the article. The trial Judge was extremely cautious and gave to the appellant full opportunity to examine every juror with reference to the newspaper article in question.

After the motion for a continuance was denied, one of the jurors tentatively selected, in reply to a question, said that he was biased and he was promptly excused. After another juror had been selected to take the place of the one excused, the State Attorney asked each of the jurors the following question: “In your frame of mind this morning, can you stand fairly and impartially as between the State of Florida and the defendant, if accepted upon this jury?” Each of the jurors stated that he could except one and he was promptly excused. Thereafter, the sélection of‘ the jury proceeded until twelve were accepted by both sides. At no time did the appellant ■take advantage of the opportunity offered to him by the trial Judge to interrogate any of the jurors about the newspaper article.

It should be noted that the question No. 2 propounded by the appellant complains about the 'Court denying his motion for a continuance and “in failing to order a change of venue, sua sponte”.

Section 11 of the Declaration of Rights of the Constitution of Florida, F.S.A., gave the appellant the right to be tried in Polk County wherein it was alleged the crime was committed. The record fails to show that the appellant at any time moved for a change of venue, or consented to a change of venue. The record shows that 37 veniremen were examined on his voir dire before a jury of twelve was accepted by both sides.

The appellant was not prejudiced by the denial of the motion for a continuance and the same did not constitute error. .

The third question advances the contention that the trial Court committed error in admitting in evidence, over defendant’s objections, the clothes’ worn by the deceased at the time of death.

The appellant divides the above question into subdivisions as .follows:

(a) The State failed to show that the clothes had been kept in proper custody since the death of the deceased.

(b) The clothes were not in the same condition at the time of the trial as they were at the time of death.

(c) The State. showed no purpose for the introduction of the clothes in evidence.

(d) The clothes failed to shed any light on any material issue in the case,

As to subquestion (a), it is unnecessary to recite all of the testimony with reference to the custody of the clothes. We have carefully considered this testimony and it is sufficient to say that the custody of the clothes was accounted for from the time they were removed from the body of the deceased until they were delivered to a Deputy Sheriff and the Sheriff, and from that time until they were produced in court at the time of the trial. .

As .to subquestion (b), the evidence offered by the State showed that the clothes remained in substantially the same condition they were in from the time they were taken from the body until produced in court.

Subquestions (c) and (d) will be considered together. The appellant urges that the clothes do not shed any light on any material issue in the case, and at the time the State offered the clothes in evidence, there was no showing as to what purpose the introduction of the clothes in evidence would serve.

The answer to the contention is that the -clothes tended to show the size and weight of the deceased. There was evidence that appellant had stated that the deceased was a very large and heavy woman and after she became ill, he was afraid to move her by himself. The- clothes were material in refuting this statement made by the appellant. Dr. Mills, who measured the deceased, found that she was only four and one-half feet long -and he estimated her weight at 100 pounds. The clothes were in corroboration of that testimony 'and refute the alleged statement of appellant as to her size and weight! A further answer is that appellant claimed that the deceased died from a heart attack, hence, the bloodstains on the clothes and their location became material as throwing light upon the cause of death and in: corroborating other testimony in the: case relative to the cause of death. The appellant was not prejudiced by the admission of the clothes in evidence and it was not error to overrule the objection qf the appellant.

The contention of the appellant that the Court committed error in permitting the clothes to go in evidence when the .State Attorney did not state the specific purpose for which the clothes were offered in evidence is without merit. The record does not disclose that the appellant made .any .objection on that ground. The appellant : is ■ confined to the specific objections that he made, in the trial court and other grounds of objection will not be considered on appeal. Markey v. State, 47 Fla. 38, 37 So. 53; Lewis v. State, 55 Fla. 54, 45 So. 998.

The - appellant relies principally on the case of Deeb v. State, 131 Fla. 362, 179 So. 894, 901, in support of his contention that before bloody clothes man be received in evidence, the state is required in offering the exhibit to state the definite purpose for which the exhibit is offered in evidence. In that case, “it w-as specifically called to the attention of the court that no reason was given nor any purpose stated for the offer, and that the only reason could be that same were offered and displayed at length to prejudice the jury -against the defendant.” In the body of the opinion, the Court said:

“Counsel for the defendant below argues that no reason for the introduction of the clothes in evidence was given by the State, although it was specifically called to the attention' of the court that no reason was given nor -any purpose stated for the offer, and that the only reason could be that same were offered and displayed at length to prejudice the jury against the defendant.

“Proper practice required the State, before offering the clothes in evidence, to show to the court that specific items of clothes worn by the deceased at the time of the homicide were -appropriate to illustrate or corroborate the testimony being then given by a witness,' * * * »

The testimony of the witness Moody who helped take the clothes from the body of the. deceased, of Arnold who first saw the clothes on the body right after the body was picked up and who also assisted in taking the clothes from the body, of Hamp Rogers, Deputy Sheriff, to whom Dan Moody g^ve the clothes, and of-Sheriff Parrish to whom his deputy, Rogers, delivered the clothes, all testified at length .in identifying the clothes and.their cpndition. The testimony of Moody and Arnold, on cross-examination by the appellant, clearly made the reason.and purpose-appear for the identification of the clothes and for offering them in evidence. Such testimony clearly -informed the Court and the appellant of the specific items, of clothes worn by the deceased at the time of death and that such clothes were “appropriate to illustrate or corroborate the testimony” of other witnesses. :

From all of the testimony with reference to identification of the clothes it is - perfectly apparent that the purpose was to use them to better illustrate and corroborate the ‘oral testimony of many witnesses, and to refute statements allegedly made by appellant to various persons prior to the trial.

The fourth question we will consider is stated by the appellant as follows: Is the defendant entitled to a new trial, when, through' no fault of his own, he did not receive a fair and impartial trial because one of the jurors was not a fair and impartial juror?

In his motion for a new trial the appellant alleged that prior to trial a juror by the name of Bloodworth had formed -and expressed a fixed opinion that the appellant was guilty and that such juror had that fixed opinion when accepted upon the jury, but that upon voir dire examination he testified that he had never formed or expressed any opinion as to the appellant’s guilt or innocence." The State traversed the allegations of the motion. The trial Judge held a hearing at which testimony was introduced for and against the allegations concerning Bloodworth. After having heard and considered the testimony, the trial Judge denied the motion. We do not find any error in this ruling. The trial Judge had all of the witnesses before him and was in a better position to pass upon the testimony concerning this matter and to determine the truth than anyone else. It is unnecessary for us to summarize or repeat the testimony which we have carefully examined. There were some conflicts in the testimony. Motives, beliefs, friendships, bias -and prejudice of some of the various witnesses examined before the trial Judge were apparent. It was the duty of the Court to pass upon such matter. The order denying the motion settled conflicts in the testimony and was necessarily based upon findings of fact that the appellant had failed to prove his allegations with reference to Bloodworth.

The juror Bloodworth testified at this hearing before the. trial Judge and his testimony becomes important in view of the case of Irvin v. State, 19 Fla. 872. Blood-worth testified that he didn’t remember having expressed a fixed opinion as to the appellant’s guilt or innocence before he was sworn as a juror in the case; that he had no fixed opinion' that he could express; that he knew none of the facts of the case before he was sworn as a juror except general gossip and reading the newspapers; that when he was examined as a juror he .was not conscious of ever having formed or expressed any opinion as to the guilt or innocence of the appellant; that at the time of such examination as a prospective juror he absolutely had a fair and impartial mind, that his mind was open when he took the oath and that he told the truth. He stated,, “The State would have to prove to my knowledge before I would deem him guilty.”'

In the case of Irvin v. State, supra, a similar contention was made about a juror by the name of Coburn. In that case the motion was considered by the trial Judge-based upon affidavits instead of the personal appearance of witnesses before the Judge., In that case this Court said:

“Aside from these considerations, Coburn, by his affidavit, sets the question at rest. He has no recollection of having used the expressions as charged in the several affidavits presented by-the defendant on the motion. He says, he had not informed himself of the-circumstances of the killing, and that-when he was sworn as a juror he had: no existing or formed opinion as to the-guilt or innocence of the accused, and: was absolutely without any previously-formed opinion, and without bias or prejudice for or -against the accused. He thus shows himself qualified as a juror when (he was so sworn.”

See also Lamb v. State, 90 Fla. 844, 107 So. 530; Crosby v. State, 90 Fla. 381, 106 So. 741.

The trial 'Court did not commit error in. refusing to grant a new trial on the ground that the appellant did not receive a fair and impartial trial because one of the jurors was not a fair and impartial juror.

The fifth question: Were not the substantial rights of the defendant to a fair and impartial trial violated by the conduct of the bailiff in permitting a religious evangelist to meet with the jury in secret session?

In the motion for a new trial the appellant alleged that on Sunday morning, September 9, 1951, and again on September 12, 1951, the bailiff brought a preacher to the jury who talked with all members of the jury and that suoh association by the jury with the preacher was highly irregular and prejudicial to the defendant.

The trial Judge took voluminous testimony with reference to these occurrences. It appeared that there had been some talk about going to church and the jurors couldn’t agree 'as to what church to attend. One of the jurors knew of a preacher who had conducted services in a church which he had attended. It was at the suggestion of this juror and not at the suggestion of the bailiff that the preacher meet with them and grace the table. This he did on the two occasions above mentioned. He remained with the jurors approximately 3 minutes and 20 seconds the first time, and 3 minutes and 40 seconds the second time. The bailiff had a stop watch and timed him.

The preacher was eating breakfast in the sanje cafe where the jurors had their breakfast; Grigsby, one of the jurors was a Methodist and Preacher Jones was a Baptist. Grigsby had attended church only twice while Jones was preaching at revivals some time before this trial. He had never met Preacher Jones and did not have any personal contact with him before the trial, except a casual conversation about politics at some motor court. The room in the restaurant where the jurors ate was closed and this is the room where the preacher was in contact with the jurors as above indicated. The bailiff was present at all times. The testimony is clear that the preacher did not mention to the jurors anything concerning the case or refer to it directly or indirectly. ’’ ■ He confined his activities to reading from the Bible and gracing the table with prayer. At the hearing before the trial Judge it appears that all jurors " were, in agreement that the preacher read from the Book.of Psalms: One juror testified that on Sunday, the first time the preacher was with them, he read a verse from Proverbs, but was unable to re,call what the verse was about; on the second occasion he read from the Thirty-seventh Psalm and apparently stressed the 5th verse, which reads as follows:

“Commit thy way unto the Lord; trust also in him; and he shall bring it to pass.”

The preacher didn’t say anything about a juror and the word “juror” wasn’t mentioned. One Juror testified that the preacher prayed,, “God, give these men your divine guidance in their duties,” and still another testified that the prea.cher asked for “divine guidance”. It, therefore, 'appears that the nearest approach to any mention of the jurors was the testimony of one juror that the preacher prayed “God, give these men your divine guidance in their duties,” and another juror who testified the preacher asked for “divine guidance”. The jurors were unanimous in testifying that what the preacher said and read did not affect their verdict.

It was the duty of the trial Judge to reconcile any conflict or apparent conflict in .the testimony before him with reference to this matter. It is apparent from the testimony that the trial- Judge in the presence of defense counsel and without any objection authorized the bailiff to take the jurors to church; the jurors couldn’t agree on which church to attend, and at the suggestion of one of more of the jurors, and not the bailiff, the preacher was called in to grace the table on two occasions before the case went to the jury. The trial Judge was justified from the evidence in finding as a fact that the preacher did not mention the case or the jurors, or discuss the duties of the jurors and that nothing was said or done which could have prejudiced the appellant or had any effect upon the verdict of the jury.

The appellant cites and quotes from the •case of Shaw v. State, 83 Ga. 92, 9 S.E. 768, 769. In that case the bailiff was ordered by the Court to keep the jury in the jury room. Instead of obeying the Court’s order, the bailiff took the jurors to a prayer meeting conducted by a preacher who was an active prosecutor in the case and who helped select the jury, and even testified before the jury. At the prayer meeting, the preacher conducted the jurors to their seats and addressed them; he prayed that the officers of the Court then in church might be guided a-right in the discharge of their ■duties.

In the case of Shaw v. State, supra, the Court recognized that where misconduct of the jury is shown, the State may show that no prejudice resulted. The case was not reversed simply because the jury went to a prayer meeting but because of the influences the jury were subjected to at the prayer meeting by a preacher who was a prosecuting witness, who helped select the jury, and who was personally interested in the case. In the course' of its opinion, the Georgia Court said:

“Here was a defendant on trial for his life. This jury had been selected to pass upon that issue. The bailiff had been sworn to keep them separate and apart from their fellow-citizens. In violation of this oath, without permission of the judge, he took them from their room, where he had sworn to keep them, to a prayer-meeting conducted by the prosecutor in the case. When they arrived there, they were shown to their seats by the prosecutor, who provided for them a place apart from the remainder of the congregation, and who led the services and addressed the congregation. Prayers were offered for the court and its officers. How long they remained there does not appear. For aught that appears in the record, the house may have been crowded. One of the grounds of the motion alleges that there was ‘shouting’ at the meeting. What influence this shouting and religious excitement may have had upon the minds of the jury does not appear. It does not appear that Mr. Hoot-en, the prosecutor, was not among those who shouted. The jury seeing this going on, and seeing this prosecutor filled with religious zeal and fervor, may have reasoned in ■ their minds, and doubtless did, that this man who.was the active prosecutor of the defendant, who assisted in .the selection ■ of themselves as jurors in the case, and who testified before them as witness, by his conduct and declarations at the prayer-meeting showed that he'was a good and upright man, and that such a man would not prosecute the _ defendant unless he believed him to be guilty. Some of them were perhaps members of his congregation, and-looked up to him as their pastor and spiritual guide, We do not say, .nor do we intend to intimate, that Mr. Hpoten designedly intended his actions to have an undue influence upon the jury, but who can say that they did not have this effect?”

We have no such state of facts in the case at bar. In the case now before us the jurors had' permission from the Court to attend church; they could not agree upon what church to attend; one of the jurors with the acquiescence of the others had the bailiff get a preacher to come into the room where they .were eating to grace the table. This preacher was not a witness for the State; he did not help select the jury; he was not an active prosecutor. He was not the pastor of any of the jurors and was known to only one juror, who had one casual conversation with him about politics and had only ‘heard him preach on two occasions.

An examination of the other cases cited and relied upon by the appellant, including, Owens v. State, 68 Fla. 154, 67 So. 39; Seekers v. State, 253 Ala. 420, 44 So.2d 633; White v. State, 129 Fla. 885, 176 So. 842, reveals that they are not in point. The case of State ex rel. Larkins v. Lewis, Fla., 54 So.2d 199, 200, is emphasized by appellant. In that case the accused was being tried for first-degree murder. After the testimony had been completed and the case submitted to the jury and while the jurors were.still deliberating in the jury room, the Court was informed that certain parties were attempting' to tamper with or communicate with members of the jury by the medium of signals or signs outside the court house, but within plain view of the jury through an open window. The trial Judge immediately went to the window there he could see what was taking place; he was satisfied that something wrong was going on; he called the jury before him, gave them appropriate instructions arid ordered them in charge of the bailiff:

“The court then had brought before him the persons charged with attempting to communicate with the jury including others who were witnesses to their conduct, 'and examined them thoroughly. The evidence developed that >C. D. Musgrove and Dudolph Rackley were in an automobile of a third party outside the court house in full view of the jury through a window, that they were making signs and signals in the direction of the window into the jury room, that one of them would motion with hands in different positions in the direction of the jury room, that he would then place his hands in his rear pocket, stare into the jury room and make contortions with his face. He would then look from the back seat of the car with his hand and five fingers extended toward the jury. It is not shown how long this performance was carried on or whether an attempt was being made to influence the jury for an acquittal or a conviction. Other and similar performance was carried on but we do not detail it here.”

Counsel for the State and the defendant were present and were fully advised as to the investigation by the CoUrt. The -Court concluded that the circumstances were highly suspicious and counsel for the State and defendant agreed with him. The trial Judge found that the circumstances revealed by his investigation made a manifest, urgent and absolute necessity for him to declare a mistrial. In that case the Court further said:

“ * * * Whether or not the jury ' or any of them had been influenced by what took place outside the court room, no one could tell, but it is certain that they had been subjected to outside influence. * ■ * * ”

It is perfectly apparent that the purpose and intent of the parties outside the court house making signs and signals was to influence the jury. It is certain that the jury had been subjected'to an outside influence —whether for or against the accused, no one could tell.

In the case at bar there was no evidence of any kind that the preacher attempted to influence the jury or that any member of the jury was subjected to' any influence by this preacher. See our recent case of Moseley v. State, Fla., 60 So.2d 167.

While we do not approve of jurors or bailiffs or anyone else inviting preachers or other outsiders into a jury room and such practice is irregular and cannot be too severely condemned, we do not find in this case that the appearance of the preacher on two occasions as shown by this record in any way influenced the jury in their deliberations or affected the verdict returned by them.

After all briefs were in, the appellant filed an Amendment to the Brief in which he raised the additional question, which we shall designate as the sixth question: Is not the appellant entitled to a new trial because the assistant state attorney charged the appellant’s counsel was guilty of trickery of a state witness and the trial court did not sufficiently rebuke the prosecutor ?

In the course of the trial on redirect examination by the Assistant State Attorney of one William Arnold, a state witness, the following question was asked and answer given:

“Q. When he came out to see you there, to talk to you, he brought a man along to take down every word that you said so that he could trick you on the stand up. here, didn’t he? A. Yes sir.”

Objection was made and the Court asked to instruct the jury to disregard the objectionable question. The Court then sáid:

“Gentlemen of the jury,'any remark or suggestion that Mr. Parkhill was .trying to trick the witness in any way is improper and you will pay no-attention whatsoever to it. ■ Pay no attention whatsoever to it. Disregard it absolutely. Forget all about it.”

Then the following proceedings took place:

“Mr. Love: I meant nothing personal about the practice of carrying along a reporter. You know that, John.”

“Mr. Love: If the 'Court please, I would like to say this-: - In making my remarks during the examination of the last witness, I intended to cast no reflection-upon John Parkhill. L have known him for many years and he’s, he’s all right, your -Honor:”

After these proceedings took place, there was no- further'objection on the part of the appellant or his counsel and no request or motion for mistrial was made because of this incident. It was not mentioned in the motion for new trial or in the grounds of appeal. The statements made by Mr. Love were a complete retraction and apology and as shown by this record was not-prejudicial and did not constitute reversible-error.

The seventh question: Did the trial court commit reversible error in permitting an expert witness, over defendant’s objections to testify that in his opinion the bruises and contusions upon the deceased, were caused by an assault, principally by blunt force, and that the method of assault was most consistent with strangulation?

Dr. Mills performed the autopsy on the body of Mrs. Albritton; he observed and testified as to the number of vyounds and the. nature and distribution of the wounds on the body. . Dr., Mills qualified as .a specialist by education, knowledge, experience and training in pathology. Since his graduation from medical college in 1910 he had had several special courses in pathology, the last course he took being at Cornell University in 1948, arid he had specialized in that field for1'41 years; he' belonged, to all the societies of'organized medicine, such as, the Hillsborough County-Medical Association, Florida State Medical Association, American Medical Association and also a Fellow of the American Society of Clinical Pathologists; he was certified by the American Board of Pathology and was a founding member of the American Pathologists.

After testifying in great detail as to the bruises and contusions on the throat and body, Dr. Mills was asked the following question: “Did you form an opinion from the bruises and contusions upon her throat and in her throat as to how — what Caused such bruises and contusions.” The appellant objected to' this question on the grounds: first, that the question called for an opinion of fact and not -a mere medical opinion; second, the question goes ibeyond the field of medical expert witness and invades the province of the jury; and third, because the doctor had already testified as to- the objective findings of his autopsy. The Court overruled the objections of the appellant and-Dr. Mills, answered the. question as follows:

“Because of the multiplicity, nature and distribution of "various wounds on this body, I concluded that they were most consistent with the person having been assaulted, principally by blunt force, arid that the method of assault is most consistent with strangulation.”

This question did not call for an answer from Dr. Mills as to whether or not there was a felonious assault or who made the assault. The question simply called "for an opinion from this expert witness as to what caused the bruises and contusions upon and in the throat -of-the deceased. He was qualified to express an opinion. Although the jury was not b.ound by his opinion, they were entitled to the benefit of that opinion to aid .them: in the performance of their duties. In 23 C.J.S..83, Criminal Law, § 868, the author states:

“The opinion of an expert" witness, particularly a physician, as to the possible and probable cause of a wound or injury, the manner of its infliction, and the kind of weapon or instrument used, is admissible. Even though -he has had no practical experience and his knowledge is derived alone from the study,-of books, a physician may be qualified to testify as an expert in respect of gunshot wounds. A physician who examined the body of a wounded or injured person may testify as to the location and character of the'wound or injury,' the direction and course of a bullet in or through the body, and the probable cause of the wound or injury.”

See also 20 Am.Jur. 730, Sec. 867; 26 Am. Jur. 458, Sec. 437; Annotation in 136 A.L.R. 966 and 985; 20 Am.Jur. 654, Sec. 782; Miller v. State, 9 Okl.Cr. 255, 131 P. 717; State v. Heinz, 223 Iowa 1241, 275 N.W. 10. The law with reference to this question is well stated in 20 Am.Jur. 654, in the article on Evidence, See. 782, as. follows :

“It is certainly contrary to the unmistakable trend of authority to exclude expert opinion testimony merely upon the ground that it amounts- to an opinion upon ultimate facts. The modern tendency is to make no distinction between evidential and ultimate facts subject to .expert opinion. The courts consider that it is more important to get to the truth of the matter than to quibble over distinctions in this . regard which are in many cases impracticable.”

The trial Court did not commit prejudicial or reversible error in overruling the objections of the appellant to the question propounded or the answer as given to such question.

■ [14,15] The eighth question: The evidence being entirely circumstantial in character, was it not legally insufficient to support a verdict of guilty?

■ The appellant has divided this question' into two subdivisions: (a) Appellant claims the evidence was insufficient to show the oause of death, and (b) the evidence failed to exclude every reasonable hypothesis except that of guilt.

(a) The appellant claims that because the state offered no direct and positive evidence as to the cause of death; because the state failed to prove that the defendant ever “so much as laid his little finger on the deceased” and did not charge and offer proof that the defendant attacked the deceased with a deadly weapon, the evidence was insufficient -to show the cause of death.

It is true that no one saw the appellant attack the - deceased, either with a deadly weapon, or with his hands. Testimony as to the condition of the body was evidence; the report of Dr. Mills who performed the autopsy was given in full to the jury as a joint exhibit of the appellee and the appellant. The report of Dr. Mills and his testimony disclosed in detail the injuries which he found on the face, the mouth, the neck, the head, chest, hands, arms, shoulders, thighs, legs and back and particularly the injuries inside the throat.

• Dr. Mills testified that there was a large bruise on her neck about the size of two fingers and nearly as long on the right side and on the left side there was a smaller bruise about the size of a quarter; around the bruises found on the neck and the face and the right ear, there were found small scratches and abrasions. He found a bruise “way back in her’ throat about the size of a fingernail. It was right behind this organ here you call the voice-box— the Adam’s apple — right behind that.” Behind that back in the back of the throat he found a bruise on the left side about the same level as a bruise upon the exterior of her face; the left tonsil was bruised; he testified that the bruise in the throat was deep below the tonsil; he attributed the deep bruise to the pressure on the hard voice box, the Adam’s apple, pushing it back against the backbone and pinching some soft tissue causing those deep’ bruises. He found there were two deep bruises on the left side, the lower one in the lower part of the throat and the upper one involving the left tonsil.

Dr. Mills also testified that he found definite evidence of -heart disease. The heart disease was not bad but marked and the heart was enlarged. He found the walls of her heart were increased in thickness.

After giving this detailed testimony of the conditions which he found, Dr. Mills testified that the wounds on the deceased’s neck and throat, both superficial and deep, •was the cause of death. He expressed the opinion that a contributory cause of • death •was her heart condition which was augmented and accelerated by the principal cause of death which was the .wounds on the throat. Dr. Mills testified the heart condition was not an advanced one and that people with such a condition usually live several years. He did testify that if such people are subjected to extreme excitement or any fatiguing experience, the heart condition might become augmented and accelerated and that such a person should not be subjected to violence or any fatiguing experience.

We have carefully reviewed all of the testimony offered by the appellee and the appellant touohing upon the question of the cause of death. Any and all conflicts in this evidence were questions for the jury to settle. The evidence as to the cause of death was legally sufficient and the assignment of error on this question is without merit.

(b) The appellant strongly contends that the ■ evidence . failed to exclude every reasonable hypothesis except that of guilt.

No ,one but the appellant . was present when Mrs. Albritton died. He made many statements to other people, but did not testify. There is no direct testimony by anyone who saw what happened immediately preceding, at the time of, or immediately after Mrs. Albritton’s death. For a conviction, the State relied upon circumstantial evidence. In order to pass upon this question it ,is, necessary that we summarize as briefly .as we may facts. and circumstances upon which the State relied for a conviction.

Ira W. Albritton was the husband of Betty Albritton, deceased. He died on January 7, 1951. Prior to that time appellant and Ira .Albritton bought and sold some cattle together. The relationship' between ¡the parties was such that the appellant was appointed administrator of the estate of Ira W, Albritton. On January 11, 1951, four days after tihe death of Ira W. Albritton, Mrs. Albritton executed a will in which she devised and bequeathed to the appellant all of her property and appointed him .as executor. The will contained the following:

“Two. I give, devise and bequeath to A. E. North, all of.my property, both real and personal, of every class and distinction whatsoever.

“It is my desire that upon my death that A. E. North should be appointed as guardian of my son, Henry Albrit-ton, and that the said A. E. North should at all times look after the welfare of my said son.

* * * * * *

“Four. I hereby nominate 'and appoint the said A. E. North as Executor of this, my Last Will and Testament, hereby giving and granting him the ■right, power and authority to sell and convey any part or all of my estate, whether real or personal, and to make good and sufficient conveyances to any purchaser thereof.”

Mrs. Albritton had a son by the name of Henry who was mentally subnormal. She left nothing to this son. The welfare and financial interest of the son was left entirely 'at the mercy of the appellant.

It is important to note the activities of the appellant with reference to the execution of this will. Prior to the execution of the will, he went to Grady Burton, a lawyer, and told him that Mrs. Albritton wished to have a-will drawn and wanted the appellant named as the beneficiary and guardian of her son. Burton would not draw the will upon the representations of the appellant but told ’ him that he would'prefer discussing the matter with Mrs. Albritton. A day or two thereafter Mrs. Albritton appeared in Burton’s office with the appellant. Burton talked to her privately and ascertained that she wished to leave all of her property to the appellant and to name the appellant as guardian for her mentally subnormal son. Burton prepared the will according to instructions and Mrs. Albrit-ton then came back with the appellant and executed the will.

In February, 1951, the appellant told one Lee Draper that he had been named as administrator (meaning executor of will) of Mrs. Albritton’s estate and at her death was to inherit the estate. He also told Draper that Mrs. Albritton’s ¡health was not good' and that she had had several attacks.'

About six weeks before Mrs. Albritton’s death she told James Hobbs in the presence of the appellant that she had made a will and that at her death, the appellant would get everything she had arid that he would take care of Hobbs and her son, Henry. Two days after the death of Mrs. Albritton on June 28, 1951, the appellant told Deputy Sheriff Rogers that he had seen Mrs. Al-britton’s will.

The activities of the appellant concerning the will of Mrs. Albritton", his knowledge of its contents and his discussion of the same with others is significant because he told Deputy Sheriff Rogers that he did not benefit by t)he will but only acted as a “trustee or something,” and that everything was willed to Henry Albritton. This statement was made on Thursday night after the death of Mrs. Albritton on Tuesday. About a month before Mrs. Albritton’s death, the testimony shows that appellant told James Hobbs, “If Mrs. Albritton was out of the way he wouldn’t have no more worries.”

The record shows that an inventory was made of the Albritton cattle two or three weeks after Mrs. Albritton’s death. There was something like 475 head of cattle in various places and they had a total value in excess of $50,000.

The appellant contends that there was not the slightest motive or incentive for the appellant to commit murder. In the appellant’s brief he states, “If he had been financially embarrassed, we readily agree the existence of. the will would have furnished motive.” It is not always true that people seek financial gain or to acquire more of this world’s goods because of financial embarrassment. The desire to possess, acquire and increase one’s financial standing is a fundamental characteristic of human nature. Greed and selfishness, throughout recorded history, have caused men to continue to seek wealth. Thousands of cases could be cited where men have continued to seek and acquire money, property and wealth after every ■financial need has been' satisfied, and all financial embarrassment eliminated. In . a case like this it was not necessary to show financial embarrassment in order for the jury to believe from the’evidence that the existence of this will constituted a .motive. The jury was the sole judge of whether or not there was a motive and from this record they were entitled to believe that there was a motive.

We now come to the fatal night of June 25, 1951, and the morning of June 26, 1951. Mrs. Albritton was at her home, about ten miles East of Fort Meade, and about 7:30 that night Mrs. Hugh Rhoden went to Mrs. Albritton’s home. Mrs. Albritton prepared supper consisting of sausage, rice, gravy, cold macaroni and cheese, and hot biscuits. They ate and after supper Mrs. Albritton Washed the dishes and Mrs. Rhoden dried them. .Mrs. Rhoden and family left about 9:30. On this occasion between 7:30 and 9:30 Mrs. Albritton looked natural and there was nothing unusual about her appearance according to the testimony of Mrs. Rhoden and James Hobbs, a Negro man who stayed on the Albritton place.

Before Mrs. Rhoden left, the appellant appeared on the scene. Mrs. Albritton followed Mrs. Rhoden to the automobile and talked with her some. She then returned to the house and sat on the porch with the appellant, her son Henry, and James Hobbs. About this time the appellant asked them if they wanted a coca cola, which they all did. The appellant and Henry Albritton went to the car together and Henry carried in two coca colas, keeping one and giving one to’ Mrs. Albritton. Henry also carried a piece of candy which he ate. The appellant brought in a coca cola for himself and one for James Hobbs and also a piece of candy which he gave to Mrs. Albritton. She ate part of the candy and drank a part of the coca cola.

After drinking the coca colas and eating of the candy, the appellant stated he had to go to Fort Meade to see a man and asked them to go with him. They all got in appellant’s automobile and went to Fort Meade and stopped at a filling station. Mrs Albritton became sick and on the way back asked appellant to stop because she had to “throw up” and stated that the piece of candy ihad made her sick. She got out of the car with the help of the appellant holding her under the armpits and dropped to her knees 'and vomited. James Hobbs then helped her back in the car and further down the road, she opened the door, held her head out and vomited again. Hobbs ■asked if she wished to have a doctor and she said, “No”, that she wanted to go home. When she got home, appellant helped her ■onto the porch by holding her under -the ■armpits. She then walked toward the back porch, turned around and came back to the front porch and sat in a rocking chair.

After Mrs. Albritton sat down in the ■rocking chair on the porch, the appellant ••asked her if she wanted a doctor, and she answered, “No.” She continued to sit there ;and heave occasionally. Henry asked her if she wanted him to get Miss Minnie Arnold, who lived close by and who occasionally did some kind of “doctoring.” .'She said she did not. James Hobbs asked ■about getting Lovie Rhoden and her husband. She told him not to get -anybody. Later on Henry asked her' if she wanted him to go and get a doctor and she told him that he had better go and get somebody. James Hobbs went out the-gate and .said he was going to get somebody. The appellant told 'him to take the jeep and go to Fort Meade and get the appellant’s ambulance. He told Hobbs to tell Arnold, one ■of his helpers at the undertaking place, to bring the ambulance and get Mrs. Albrit-ton and take her to the hospital. He sent Henry off with James Hobbs and told them they needn’t drive fast. They left between 11:00 and 11:30. The appellant’s Oldsmobile was there. He did not use it to take Mrs. Albritton to a doctor. He sent James Hobbs and Henry Albritton in a jeep with instructions not to drive fast and to bring back an ambulance. After they left, no one was present but the appellant and Mrs. Albritton. James and Henry went to the funeral home, got the ambulance, and with Arnold returned to the Albritton home. Mrs. Albritton was dead when they got there, and testimony is that at that time the appellant said, “She just had a hemorrhage and fell over dead.” He said that James and Henry.'had not gotten out of sight when she died.

The testimony shows that a cot was carried in from the ambulance and the appellant got a sheet and threw it over Mrs. Albritton. She was lying on the porch. James Hobbs saw her face — it was bloody. Arnold, the appellant’s helper, raised the cover from her face and saw that .it was dark and discolored. They put her on the cot and carried her to the ambulance. Arnold, the appellant’s helper, asked him if he was doing right in moving the body without calling a doctor. He told Arnold they would call one . later and instructed Arnold not to do any calling until the appellant got to the funeral home. No doctor was, ever called and no death certificate was ever turned in, or filed.

Henry Albritton went on the ambulance to the funeral home and the appellant kept James Hobbs with him. They scrubbed up the blood by lantern light and then appellant and James went to Fort Meade.

When Arnold got to the funeral homej he and Dan Moody, wiho was also a helper of the appellant, carried the body into the morgue and -placed it on a table. They took the clothes off and began to wash the body. ' Moody and Arnold described in considerable detail the bruises they found on the body and the blood which they found on the face from beloW the eyes down and on the throat and hands. Before, the washing of the body.was completed, appellant appeared on the ; scene. The testimony shows that at this time there was a scratch or small cut on' the back of appellant’s right, hand up above the knuckles which was fresh and looked like he had skinned it. There was a broken fingernail on the deceased. On Thursday night when Deputy Sheriff Rogers talked to, the appellant, he saw several scratches on appellant’s hands between, his knuckles and some were' above the .knuckles. .

The testimony shows that ■ it was customary to prepare funeral notices at .this particular .funeral parlor and that Moody helped prepare them. He -asked appellant if he wanted 'him to go ahead and start writing up the funeral notices for Mrs. Al-britton. The appellant told him to wait a while “I don’t know whether there will be one or not.”

The testimony shows that the appellant had never before instructed Moody not to prepare a death notice.

After Mrs. Albritton’s face was washed, the instruments were laid out and Arnold started to make an incision. According to the testimony, the appellant said, “Wait, I will do that. If I go in there, I know what I got. If somebody else goes in there, I don’t know.” Thereafter the appellant made the incision and went ahead with the embalming and set the features. Before he left the funeral parlor about 3 :00 A.M., he placed a pack on Mrs. Albritton’s face, the purpose being to bleach out the bruised areas.

The next day Arnold and Moody finished the embalming. They tro-carred her stomach at the direction of the appellant. The testimony shows that the purpose of tro-carring is to empty the organs of blood that can’t be gotten out through drainage.

The testimony of Arnold was that after the embalming was finished the appellant said, “Wait until Katie and Minnie find out about this. — They’ll ask a lot of questions, but as far as we know, she died of a heart attack.” At the scene of death the appellant told Arnold, “She just had a hemorrhage and fell over dead.”-

In the further effort to remove tlhe bruises on the face, the appellant had Arnold apply wax to them, and promised to pay Arnold $5 extra if 'he would make her look good and please the family. At least two or three times the accused went in where Arnold was working and told him to pay particular attention to the left eye and see that it looked good. After the body was placed in the casket, -Arnold called the appellant’s attention to the bruise on the back of the left hand. The appellant told Arnold to put some white gloves on deceased’s hands.

One Morgan Albritton asked the appellant how Mrs. Albritton took sick and died, and the appellant replied, “damn quick.” On the day of the burial, Morgan Albritton asked the appellant if he had a doctor to-Mrs. Albritton and he replied that there was no need of a doctor, that she was dead,, and that she died of a heart attack. Morgan Albritton asked about the body looking so bad and the appellant replied, “I thought so much of the woman I couldn’t do the work myself.” On Thursday night ‘he told Deputy Sheriff Rogers that he personally did the embalming because, “I thought so much of the old lady I just wanted to see that it was a good job done-on it.”

The appellant was in charge of the funeral. The testimony shows that it was-the custom among rural people to bury the body with the feet toward the east. The-casket was first placed with Mrs. Albrit-ton’s feet toward the west with the casket-cover raised over to the south side. In viewing the body those present passed on the north side of the casket. Just before the casket was lowered into the grave, the position, was reversed so that Mrs. Al-britton’s feet were turned toward the east. The jury was justified, after hearing this testimony, in believing that appellant had the casket switched around so that the ligtht would not fall upon deceased’s face in such a way as to show up the bruises thereon.

Prior to putting the coffin in the hearse to go to the cemetery, Arnold, the appellant’s helper, told appellant lie had forgotten to seal the casket. The appellant answered, “Well, that’s all right. That’s all right.” According to the testimony the casket was never sealed. The vault was not sealed and appellant told the grave digger,, Harrison, that he did not seal it because the deceased requested him not to, and stated to him that it was Mrs. Albritton’s request that it not be sealed. On Thursday night, June 28, 1951, the appellant told Deputy Sheriff Rogers that he had buried-Mrs. Albritton according to her request which (had been made at the same time that Ira W. Albritton had made his request, that they wanted to’ be buried in the same manner and that was the way he had handled it. However, the testimony shows that Mr. Albritton’s vault was sealed.

The day after the funeral the appellant took James Hobbs and Henry Albritton to Hardee County where most of the Albrit-ton cattle were and “cow hunted.”

After the return from Hardee - County, James Hobbs and Henry' Albritton went to Lantana. On their way back they met the appellant who called James Hobbs off to one side and asked him if (he had “two square pointed shovels and a nail bar.” James told him he didn’t and asked him what-he wanted them for. According to James’ testimony, -the appellant said he wanted to dig up that body “so when the law dig it up they won’t find it there.” The appellant told James Hobbs he would meet him at the 'house around 11:00 o’clock. James reported this to Willard Houze and J. R. Collins. Houze called Willard Williamson, the jailer, and Williamson came to see Hobbs and Hobbs told him the same story. The testimony was that the appellant did go back to see James Hobbs at about 11:00 or 11:30 that night but did not mention anything about digging up the body. In the meantime the testimony shows that about 8:15 on that Thursday night, State Attorney Woolfolk with Deputy Sheriff Rogers and Investigator Keen went to see the appellant and talked to him at length about the death of Mrs. Albritton. Tlhe appellant strongly urges that this testimony about digging up the body is incredible and not entitled to belief. The jury 'was the sole judge of the credibility of the witnesses and was entitled to believe this testimony, and as reasonable men, to draw such conclusions and inferences from it, together with the visit from the State Attorney, deputy sheriff and investigator, as they saw fit.

The testimony shows that after officers began making an investigation and asking questions, the 'appellant, on Thursday night, between 11:00 and 11:30, went to the Albritton place and told James Hobbs and Henry Albritton not to tell anybody about having eaten any candy or drinking cold drinks or going anywhere the night of Mrs. Albritton’s death, and on the same night he'told Deputy Sheriff Rogers, “There was no food or drink taken so far as I know by anyone in the party after the Rhodens left.”

The testimony shows that on the night they went to Fort Meade the party only stopped at a filling station, but the appellant told Deputy Sheriff Rogers after the investigation began, that they went straight t