In this case the plaintiff in error was indicted in the Circuit Court of Polk County for murder in the first degree. He was arraigned in open court and pleaded not guilty. A day for trial was set and afterwards trial was postponed to a later date in the term. He presented motions for continuance and for change of venue.

It is not necessary to consider the action of the Court in overruling these motions because when the day arrived for the trial the defendant appeared in open court, withdrew his plea of not guilty and pleaded "guilty as charged."

Thereupon, under the provisions of Section 5038, R. G. S., 7140 C. G. L., the court proceeded to hear the testimony and determine the degree of the unlawful homicide of which the defendant was guilty. *Page 194

Under this state of facts, the only question for us to determine is whether or not the evidence showed that the accused entertained a premeditated desire to effect the death of the deceased at the time he committed the act which resulted in such death.

Of the sufficiency of the evidence as to this essential element of the crime there can be no doubt. The evidence shows beyond question that one, Perry Acree, and his mother were engaged in an altercation with two police officers; that Perry Acree had lain down on the ground to keep the police officers from putting him in an automobile to take him to jail and that Mrs. Acree, his mother, had gotten down over him to protect him from the police officers and to obstruct their purpose in arresting and carrying him to jail. That Johnston, who was not related to either party and had nothing to do with the affray, came upon the scene and Mrs. Acree called upon him for help; that he deliberately went into her house and returned with a pistol, not in open vision, but approached the parties engaged in the altercation from the rear of police officer Nicholson, drew the pistol and deliberately shot Nicholson in the back of the head, killing him instantly.

Now the majority opinion in this case says: "The record indicates that it was because of the denial of his motion for change of venue that the plaintiff in error, believing that he could not obtain a fair and impartial trial before a jury, at the time and place of the trial, decided to change his plea, as above stated, and thus forego his constitutional right to a jury trial, and leave it to the trial judge to determine, under the statute, the degree of his guilt. Thus the error in denying the motion was not waived."

I do not find in the record that which leads me to agree with the above quoted conclusion. I think that the record *Page 195 shows that the defendant was guilty of a most cold-blooded and unwarranted murder in the first degree, and further that the defendant was fully cognizant of the enormity and seriousness of his offense and that he was playing for time, which is the course most desired by all criminals when they know that the evidence warrants a conviction beyond any question of doubt.

The motion for a change of venue was traversed and evidence in support of the motion and in support of the traverse was presented to the Court. On consideration of this evidence, it was the duty of the trial judge to exercise his sound discretion and, if he found from the evidence the facts to be such that the defendant could have a fair and impartial trial in that jurisdiction, it was his duty to over rule the motion. As I see it, the record would not warrant us in saying that the judge abused his discretion and committed a reversible error which would have required a reversal of the case had the defendant gone on to trial before a jury and had been convicted.

As I see the record, when the time came for the defendant to face a jury he decided that he would rather risk his fate in the hands of the trial judge. In other words, he knew what the facts were; he knew that he was guilty and would be proven guilty of the cold-blooded, unwarranted and unprovoked murder and he evidently thought there was some probability that the trial judge would not have the courage to inflict the death penalty when the whole responsibility was laid upon his shoulders. Whereas, if the case was submitted to a jury there would be no element upon which he could hang a hope of a recommendation to mercy.

I think justice demanded that a fair and impartial trial should result in the judgment which obtained in this case. *Page 196

If we are to say that when law-abiding people become incensed and forcefully express their disapproval of the deliberate and unwarranted taking of human life like that then the criminal who so takes human life should not be tried in that community, we go a long way toward encouraging the perpetrators of such crimes, as well as to encourage the substitution of mob violence in lieu of the orderly and lawful administration of justice.

I, therefore, do not concur with the majority opinion in this case.

DAVIS, C. J. (not participating in final decision): I happened to be in the City of Lakeland on the afternoon and night of tragedy which led to the conviction and sentencing to death of the plaintiff in error in this case. While there I witnessed many of the exciting happenings which I now find have been made the basis for the sole proposition of law upon which this appeal is about to turn, that is, the proposition of change of venue. I doubt that I am disqualified as a matter of law to participate in the final decision of this writ of error, but at the same time, I consider it only fair to the convicted defendant, in a matter involving as it does, his life or death, that I yield to the views of the three members of this Court who have reached the definite conclusion that a new trial should be awarded in the interest of justice, in order to avoid having this convicted defendant go to his death in the electric chair by an equal division of the members of this Court on the question whether or not he has had that fair and impartial trial which the constitution contemplates that he should be accorded before he is condemned, guilty though he may be.

Nevertheless, without participating with Mr. Justice BUFORD to the extent of voting with him for an affirmance of the judgment, but fully agreeing with the principles of *Page 197 law announced in his dissenting opinion as to the legal effect of a plea of guilty interposed after a motion for change of venue has been made and denied in a case like this, I am content to allow the case to be remanded for a new trial in order that all doubt may be forever banished as to the fairness of the trial accorded a prisoner condemned to death.

My view is that no sentence of death should be upheld by a technical affirmance based upon an evenly divided Supreme Court as to whether or not the defendant has had a fair and impartial trial according to the State and Federal constitutions. I therefore refrain from participating in the decision of this case in order that my vote for affirmance of the judgment will not lead to the result of upholding the sentence against this defendant on such an equal division of this Court as I have just referred to.