This case is before the Court on writ of error from a judgment of the Circuit Court of Hillsborough County sentencing the plaintiffs in error to death for the murder of Joe B. Johnson.
The evidence shows that Joe B. Johnson, a well to do citizen of Tampa, was shot and killed on the night of Sunday, January 18th, 1931, near midnight, while he was putting his automobile in a garage in the rear of Crescent Apartments in Tampa. The motive was robbery. The shot that killed Johnson was fired by the plaintiff in error, Victor Palmer, who, according to his own confession and testimony at the trial, was furnished the pistol for that purpose by one Louis Leavine, with the instruction: "Here is the gun, tell him to stick them up and if he don't stick them up pull the trigger." The pistol was a 32 caliber automatic pistol, and when Johnson failed to "stick them up" quick enough, Palmer followed instructions to "pull the trigger" with the result that Johnson was wounded one time in the right breast just under the nipple from which wound he died late the following day. Prior to this time, Louis Leavine, "Bubber" Heidt and Victor Palmer had been riding around together in a Ford sedan car which Leavine had borrowed for the purpose, and at the time of the shooting by Palmer, he and Leavine were together after having left the car in charge of Heidt, who remained with it.
Leavine, Palmer and Heidt were jointly indicted, but only Palmer and Heidt were jointly tried. The jury found both of them guilty of murder in the first degree, without recommendation of mercy. Leavine having escaped *Page 239 the country and not being in custody at the time of the trial of Palmer and Heidt, a severance was granted as to him on motion of the State. After the verdict of guilty, motions for new trial were separately made and denied as to each of the plaintiffs in error.
The guilt of both plaintiffs in error is amply established by the evidence, which consists not only of the testimony of disinterested witnesses as to circumstances corroborating their guilt, but of proof of damaging admissions by each of them concerning their personal participation in the series of acts which immediately preceded and accompanied the ultimate attempted robbery and actual murder.
Palmer confessed firing the shot while attempting the robbery of Johnson, and also testified at the trial to that effect. Heidt did not become a witness nor testify at the trial, but his written statement or so-called "confession," which had been made and signed by him, shows that he was present at the scene of the homicide when the fatal shot was fired; that just prior to that time he had been in the same car in company with the other two participants, one of whom admitted he actually fired the shot, and that he (Heidt) drove away with one of them from the scene of the shooting.
This showing was sufficient to warrant the jury in rejecting the exculpatory portion of Heidt's so-called "confession" wherein he undertook to relieve himself of guilt of complicity in the crime by showing that while he was present at the place of the attempted robbery and heard the gun fire about the time Johnson was shot and Louis Leavine came back and Victor Palmer ran away, that he knew nothing of the "criminal intentions" of either of his companions in connection with their endeavor to perpetrate a robbery while Heidt himself innocently remained alone in the car waiting for the others *Page 240 to return. Also Heidt's apparent flight a day or two later to Savannah, Georgia, where he was arrested, confirms the jury's right to draw the inference that he was implicated in the crime which was just then about to be solved by the police by the arrest of one of its perpetrators, when Heidt acquired his unexplained eagerness to go to work in a distant city.
The Court has carefully considered the whole case as disclosed by the transcript and finds some irregularities but no reversible error in the record. Both defendants were given a fair trial, and the resultant verdict of guilty of murder in the first degree is the only verdict that could have been rendered by the jury without being contrary to the law and the facts.
In affirming the conviction of Palmer we deem it of importance to call attention to the fact that while the motion for a new trial filed by Victor Palmer does not appear to have been filed within the four days required by law (Section 4497 C. G. L., 2810 R. G. S.), but was filed pursuant to a special order made by the trial judge allowing such motion for new trial to be filed after the expiration of such four days, we have nevertheless most carefully examined the bill of exceptions reserved as to the proceedings had on Palmer's trial, and notwithstanding the fact that his motion for a new trial was made out of time and this circumstance would prevent its consideration as a proper motion under the law (McLendon v. State, 90 Fla. 272, 105 Sou. Rep. 406), and have found that no reversible error appears as to Palmer and that his motion for a new trial should have been overruled, even if it had been filed within the required four-day period.
Under the existing statutes of this State, motions for new trials in criminal cases must be made and filed within four days after verdict as required by Section *Page 241 4497 C. G. L., 2810 R. G. S., and the provisions of Section 4498 C. G. L., 2811 R. G. S., authorizing the court to extend the time as much as fifteen days for making a motion for a new trial in civil cases cannot, under the express terms of the latter Section, be extended to criminal cases, so as to warrant the court in granting like extensions of time in criminal cases beyond the four days limited by Section 4497 C. G. L., supra. McLendon v. State, supra.
A motion for a new trial is not necessary for appellate review of errors alleged to have been committed by the trial court during the trial when they have been properly excepted to at the time, and duly reserved and shown in a bill of exceptions, although the inclusion of such errors as grounds of a motion for a new trial is always permissible. Warner v. Goding, 91 Fla. 260, 107 Sou. Rep. 406.
Finding no reversible error in the record, the judgment of conviction is affirmed as to both plaintiffs in error.
Affirmed.
BUFORD, C.J., AND ELLIS, TERRELL, AND DAVIS, J.J., AND HUTCHISON, Circuit Judge, concur.
BROWN, J., dissents.