ON PETITION FOR A REHEARING. On July 19th, 1932, we affirmed the judgment of death entered against the plaintiffs in error, holding at that time that no reversible error warranting a new trial had been made to appear.
While we did not in our opinion filed at that time, undertake to discuss in detail each and every separate assignment of error which had been raised and argued, it does not follow that all of the assignments properly presented to us were not just as fully considered as if they had each been separately discussed.
Opinions prepared and filed by an appellate court are intended to serve two principal purposes: (1) to preserve *Page 243 for the benefit of the practitioners and the courts the reasons for the decision in the case as a precedent for future cases of like character; (2) to operate as a check upon arbitrary and whimsical decisions by appellate courts whose only restraint in the nature of things is the requirement that when as an appellate court it decides cases a particular way, it shall record its reasons for so doing. Leading members of the judiciary and of the bar have long been protesting the needless multiplication of long and involved opinions by reviewing courts, where only fact questions or questions of law presenting no new questions are involved, and in an effort to obviate the objection as applied to this court, it has become our settled policy to specifically discuss in our opinions only the major points involved in the appeal, not thereby indicating, however, that the minor points not specifically discussed were not just as fully considered and studied by us as were the ones concerning which discussion was had. We deem it necessary to call attention to this practice of ours at this time, because of the frequent number of petitions for rehearing which we are called on to consider, based almost solely on the complaint that because some point was not specifically dealt with in the opinion we filed, that therefore it must not have been considered by us at all.
The present writ of error involves a judgment of death rendered against each plaintiff in error, and for that reason we have again completely considered and reviewed the entire case in the light of the two specific grounds set up in the petition for rehearing filed on behalf of Norman Heidt.
The first ground of the petition for rehearing is that the court neglected to consider the assignment of error relating to the denial of Heidt's motion for a severance of his trial from that of Victor Palmer. This point was *Page 244 carefully considered by us but not sustained on the original hearing, except by one Justice of this Court, who filed a dissenting opinion as to that particular proposition.
The majority view was that under the case of Suarez vs. State, 95 Fla. 42, 115 Sou. Rep. 519 (relied upon by plaintiff in error for reversal) the granting of the motion for severance was so largely discretionary that only an abuse of discretion in denying such a motion, would warrant a reversal of the judgment therefor, and that no such abuse appeared in the present case.
Heidt's motion for severance was based upon the allegation that Victor Palmer had confessed the murder of Johnson, and that it would prejudice Heidt to be jointly tried with the man who had confessed his part in a killing in which he (Heidt) was charged with being implicated, because no charge to the jury to disregard the confession by Palmer as evidence against Heidt would erase it from the jury's consideration as such, whether consciously or unconsciously. Ordinarily this might be a good objection. And under the Suarez case we will always consider a violation of the defendant's rights by denial of a severance in a proper case requiring it, as being reversible error "unless the record shows that no injury resulted therefrom to the movant." (See fifth headnote, Suarez case, 95 Fla. text 43).
But Heidt's motion for a severance went further than merely to set up that evidence which was incompetent against Heidt (that is, Palmer's confession) was to be introduced, so as to be prejudicial to Heidt in the eyes of the jury. It set up that Victor Palmer was to be called as a material witness in Heidt's favor, and that to deny a severance would preclude Heidt from the benefit of putting Palmer on the stand as such a defendant's witness, *Page 245 as Palmer might elect to refuse to testify, inasmuch as he was a defendant on trial.
But Victor Palmer did not refuse to testify. In fact, he did testify and testified fully to everything that he could possibly have testified to had the severance been granted and he been called simply as Heidt's witness. What he testified to was as much in Heidt' favor as it could well have been under the particular circumstances under which the killing was perpetrated. Heidt's only defense to the charge of complicity in the murder was that he went down to the place of the attempted homicide and robbery without knowing why Leavine and Palmer were going there, and that the acts of Leavine and Palmer in attempting the robbery and accomplishing the resulting murder, were without his knowledge until after they had happened. His presence near the scene was admitted. The only thing that was not admitted was that he was present with knowledge that Palmer and Leavine had gone off to commit a robbery and had succeeded in committing a murder instead.
The motion for severance affirmatively stated that unless a severance was granted to the defendant, Norman Heidt, and he be allowed to have a separate trial apart from that of Victor Palmer, that the movant could not place Victor Palmer on the stand as a witness, and would be prevented from having the benefit of his testimony which would be material and of benefit to the defense. The Court had the right to take this statement in the motion for severance at its face value, and to conclude therefrom that the defendant Heidt, the movant, was desirous of using Palmer as a witness in his behalf concerning what transpired at the scene of the homicide, so as to show that movant was not implicated in the murder which had occurred at the hands of Palmer. The record shows that at the trial Victor Palmer was in fact called and testified *Page 246 as a witness in the case. While it was expressly stated that he was not called as a witness for Heidt, the testimony that was given by him related the whole transaction from beginning to end and Heidt had the benefit of using such parts of it as were favorable to himself, without having to call Palmer as his own witness.
The circumstances, therefore, bring the denial of Heidt's motion for a severance within the ruling of the Suarez case, supra, where it was said that where the defense or interests of two or more jointly indicted are antagonistic, or if evidence which is incompetent against one defendant is to be introduced against another, and is of a sort to be prejudicial to the former in the eyes of the jury, a severance should be granted, and its denial would be reversible error, unless the record shows that no injury resulted therefrom to the movant.
In this case the record shows affirmatively that Palmer's testimony was by no means antagonistic to Heidt's theory of defense, which was that he was present in the neighborhood of the murder, but not there as a conspirator in the perpetration of the attempted robbery from which the murder ensued. It also shows that no incompetent evidence of a prejudicial sort to Heidt, was introduced before the jury in the course of submitting the proof against Palmer. So the record affirmatively supports the conclusion that even if technical error was committed by the court in denying the motion for a severance, no injury resulted therefrom to the movant, and therefore no reversible error was committed. Saurez vs. State, supra, fifth headnote.
The second ground emphasized by the petition for a rehearing is that the court erred in admitting in evidence over objection, a certain written statement that Heidt had been induced to sign shortly after his arrest. The written statement in question was as follows: *Page 247
"Feb. 17th, 1931. After being warned of my constitutional rights and told that anything I might say would be and could be used against me. And without fear or promise of reward without being threatened or promised anything. I Norman Heidt known as Bubby of my own free will and accord wish to make the following statement:
I went to the corner of Crescent Place and North A street with Louis Leavine and Victor Palmer the night of January 18th, 1931; Victor and Louis got out of the car and were gone for a few minutes; I heard a gun fire and Louis came back and Victor ran away. Louis and I drove away. Victor did not leave with us. I knew nothing of any criminal intention. I did not have a gun, — and did not know that Victor Palmer or Louis Leavine had a gun." (Signed) Norman Heidt.
The trial Judge treated the foregoing signed statement as a "confession" and after sending the jury out of the court room, made a detailed inquiry as to whether or not it was voluntary and then received it in evidence according to the rule laid down by us in the Nickels case, 90 Fla. 659, 106 Sou. Rep. 479. We find no error was committed in receiving the above quoted paper in evidence under the circumstances for two reasons: (1) if the paper be regarded as a "confession" the rule was complied with in proving it before it was allowed to be considered by the jury; (2) the statement is in reality not a confession, but it is a voluntary statement of fact made by the defendant, which does not per se tend to establish his guilt, but which is exculpatory in its nature.
In the case of State vs. Campbell, 73 Kan. 688, 85 P. 784, 9 Ann. Cas. 1203, 9 L.R.A. (N.S.) 533, the rule on the subject of such declarations, was stated by the Supreme Court of Kansas as follows:
"Voluntary statements of fact, made by a defendant in a criminal action, which do not tend to establish his guilt, but which are exculpatory in their nature, *Page 248 are competent evidence against him as admissions of a party."
The distinction between a "confession" and a mere statement or declaration in the nature of an "admission" of one or more particular facts, is one recognized by the courts and text writers because it is a patent distinction in the very nature of things. All "admissions" other than confessions are usable against the accused in a criminal case precisely as against a party in a civil case. See Wigmore, Evidence, Chap. 35, #1050. This rule has been applied in the State of Georgia, where it was held that a declaration made by one charged with murder, admitting the homicide, but disavowing any criminal responsibility therefor, is admissible in evidence as an admission of a fact, and that when it is so admitted, the court will be in error in charging the jury on the subject of "confessions" on the theory that such an admission of a fact is a "confession." See Powell vs. State, 101 Ga. 9, 29 S.E. 309, 65 A. S. R. 277.
An acknowledgment of a subordinate fact, not directly involving guilt, or, in other words, not essential to the crime charged, is not a "confession," because the supposed ground for rejecting confessions unless clearly shown to be voluntary, is that a strong motive impels an accused to admit guilt as the price of purchasing immunity from punishment. Therefore when a person only admits certain facts from which a jury may, or may not, infer guilt, there is no "confession" as that term is understood in the criminal law. Covington vs. State,79 Ga. 687, 7 S.E. 153.
In this case the court upheld defendant's contention that the statement in question should not be introduced except under the rules relating to proof of confessions, although it might have been introduced under the foregoing rule of evidence, as a mereadmission of certain *Page 249 subordinate facts, from which the jury might, or might not, have inferred guilt. We commend the practice of trial courts in observing the rule of caution in such matters. When indoubt it is the better practice to treat such statement of an accused as admissible only under the rule governing admission of "confessions," and requiring that rule to be complied with, even in cases which apparently disclose only admissions of subordinate facts falling within the less stringent rule. The rule of caution followed in this case, and if error was committed in following it, the error was against the State and not against the accused, who cannot complain under such circumstances, since the statement above quoted is by no means a "confession" of guilt by Norman Heidt of the crime of murder committed by Palmer in which Heidt was alleged to have been implicated. On the contrary, the statement is of an exculpatory nature for the most part, damaging to Heidt only in the sense that it contained an admission by him that he was in the immediate neighborhood of the killing when the crime was committed, and that he had gone there at the time in company with Palmer, the admitted killer.
When an accused attempts to make an exculpatory statement, which if believed in its entirety would entitle him to be acquitted of the crime charged against him, in connection with which such exculpatory statement was made, the state may introduce such statement in evidence against the accused as an admission by him of the subordinate facts referred to therein, from which the jury, in connection with other evidence in the case, may or may not infer guilt. In this case the State introduced Heidt's so-called "confession" for the purpose of showing the subordinate fact of his having gone to the scene of the attempted robbery and murder with the murderer, Joe Palmer, and of his having been near enough to the *Page 250 actual killing to have heard the shot which resulted in the killing.
The fact that the net result was to have theadmissions contained in the exculpatory statement operate as links in the chain of circumstantial evidence from which the jury inferred guilt, cannot convert the statement in question into a "confession" per se.
Petition for rehearing denied.
BUFORD, C.J., AND ELLIS, TERRELL AND DAVIS, J.J., concur.