WEBB
v.
STATE
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Webb was convicted of second-degree murder and sentenced to 25 years hard labor. The Florida Supreme Court affirmed, rejecting contentions that admission of a photograph of the deceased was improper and that jury separation during deliberation was erroneous.
The photograph was properly admitted as it contained nothing gruesome or hideous, and any error was harmless given the conclusive evidence of guilt. The jury separation was not shown by the record to constitute improper separation, and even if it did, the appellant failed to prove prejudice under Florida law.
“The trial Court inspected the photograph before it was admitted in evidence, there was nothing gruesome or hideous about it to arouse the passion of the jury and if there had been, there was ample evidence beside the photograph to support the conviction.”
Establishes the standard for admitting photographs of deceased in evidence and harmless error analysis
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Join FLexlaw to unlock all legal intelligenceWebb was tried for first-degree murder but convicted of second-degree murder. He was sentenced to 25 years hard labor. Webb admitted making no effort …
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TERRELL, Acting Chief Justice.
Appellant was tried for murder in the first degree. He was convicted of murder in the second degree and sentenced to a term of twenty-five years at hard labor in the state penitentiary. We are confronted with an appeal from that judgment.
It is contended that the trial court committed error in permitting the introduc-duction in evidence of a photograph of the deceased.
There is no merit to this contention. The trial Court inspected the photograph before it was admitted in evidence, there was nothing gruesome or hideous about it to arouse the passion of the jury and if there had been, there was ample evidence beside the photograph to support the conviction. Appellant admitted that he made no effort to avoid the killing and he was not defending his home. There is some contention that he was liquored up and not responsible when he fired the fatal shot, but we find no support for this contention. There was conclusive proof that defendant was guilty, and even if error had been committed in the introduction of evidence, it was harmless. Daugherty v. State, 154 Fla. 308, 17 So. 2d 290; Goddard v. State, 143 Fla. 28, 196 So. 596.
It is next contended that the trial court committed error in permitting the jury to separate after the case had been finally submitted to them and before they concluded their deliberation and returned the verdict.
We have examined the record in support of this contention and it does not conclusively show that the jury separated after it retired to consider its verdict. It is shown that they took a recess for lunch and on return proceeded to the jury room, but this does not show a separation. The old rule in capital cases, since replaced by the criminal code, was that separation of the jurors raised a presumption of injury necessary for the state to rebut by proof that the accused suffered no injury from the separation. Section 920.05, F.S.A. appears to have modified this rule as to both capital and non-capital cases, in that it provides for a new trial in case the jury is separated after retiring to consider their verdict “provided the substantial rights of the defendant have been prejudiced”. There is no presumption of injury, so if appellant claims injury, he must prove it.
Appellant has not carried the burden of showing injury so the judgment appealed from must be and is hereby affirmed.
Affirmed.
ROBERTS, MATHEWS, and DREW, JJ., concur.
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Raines v. State, 65 So. 2d 558 (Fla. 1953)…On Petition for Rehearing. TERRELL, Justice. The petition for rehearing proceeds on the theory that the instant case is an identical twin of and is ruled by Webb v. State, Fla., 62 So. 2d 410, decided three months ago, but that the Court has turned hand springs to reverse itself without any reference to the Webb case or attempt to qualify it in any manner. Let us see if the record shows that the Webb case and the instant case are identi…
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Cullaro v. State, 97 So. 2d 40 (Fla. 2d DCA 1957)…graph in that the photograph may have been so gruesome or hideous as to arouse passion of jury was harmless where there was ample evidence aside from the photograph to support defendant’s conviction for second-degree murder. See Webb v. State, Fla., 62 So. 2d 410. The evidence is ample to support the verdict. Appellant’s question four relating to the denial by the trial court of the requested charge of self-defense was answered in appellant’s own testimony, Tr. p. 137: “Q. There is no self-defense in it at…
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Carlton Taylor v. State, 683 So. 2d 193 (Fla. 3d DCA 1996)…PER CURIAM. Affirmed. See Webb v. State, 62 So. 2d 410 (Fla.1953); Wright v. State, 223 So. 2d 112 (Fla. 3d DCA1969).…
Authorities Cited
- Goddard v. State, 143 Fla. 28 (Fla. 1940)
- Daugherty v. State, 154 Fla. 308 (Fla. 1944)