principals in the first and second degree

On April 1, 1975, at approximately 7:45 a.m., Thomas and Eunice Kersey, aged 86 and 74, were robbed and fatally shot at their farmhouse in central Florida. Sampson and Jeanette Armstrong went to the back door of the Kersey house and asked for water for an overheated car. When Mr. Kersey came out of the house, Sampson Armstrong grabbed him, pointed a gun at him, and told Jeanette Armstrong to take his money. Mr. Kersey cried for help, and his wife came out of the house with a gun and shot Jeanette Armstrong, wounding her. Sampson Armstrong, and perhaps Jeanette Armstrong, then shot and killed both of the Kerseys, dragged them into the kitchen, and took their money and fled. Two witnesses testified that they drove past the Kersey house between 7:30 and 7:40 a.m. They saw a large cream- or yellow-colored car parked beside the road about 200 yards from the house. A man was sitting in the car. Another witness testified that at approximately 6:45 a.m. he saw Ida Jean Shaw, petitioner's common-law wife and Jeanette Armstrong's mother, driving a yellow Buick with a vinyl top which belonged to her and petitioner Earl Enmund. Enmund was a passenger in the car along with an unidentified woman. At about 8 a.m. the same witness saw the car return at a high rate of speed. Enmund was driving, Ida Jean Shaw was in the front seat, and one of the other two people in the car was lying down across the back seat. Enmund, Sampson Armstrong, and Jeanette Armstrong were indicted for the first-degree murder and robbery of the Kerseys. Enmund and Sampson Armstrong were tried together. The prosecutor maintained in his closing argument that Sampson Armstrong killed the old people. The judge instructed the jury on felony murder, including that the evidence must establish beyond a reasonable doubt that the defendant was actually present and was actively aiding and abetting the robbery or attempted robbery, and that the unlawful killing occurred in the perpetration of or in the attempted perpetration of the robbery. The jury found both Enmund and Sampson Armstrong guilty of two counts of first-degree murder and one count of robbery. A separate sentencing hearing was held and the jury recommended the death penalty for both defendants. The trial judge then sentenced Enmund to death on the two counts of first-degree murder after finding four statutory aggravating circumstances and that none of the statutory mitigating circumstances applied. The Florida Supreme Court remanded for written findings as required by statute. The trial judge reiterated the findings, and the Florida Supreme Court affirmed Enmund's conviction and sentences after rejecting two of the four aggravating circumstances but concluding that the remaining two outweighed the absence of mitigating circumstances. The Florida Supreme Court found that there was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered. However, the jury could have concluded he was the person in the car by the side of the road near the scene of the crimes waiting to help the robbers escape. We granted Enmund's petition for certiorari presenting the question whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life.

Evidence was taken at Huntsville by agreement of the parties to facilitate the hearing and to subserve the convenience of the witnesses, although the judges sat as individual members to avoid exercising judicial power away from the seat of government. The information charged John B. Tally, judge of the ninth judicial circuit, with willful neglect of duty in failing to intervene to prevent the Skeltons from killing R. C. Ross and with complicity in the murder of Ross by the Skeltons. Tally was the brother-in-law of Robert, John, James, and Walter Skelton, whose sister Annie Skelton had been the object of Ross's criminal intimacy. Ross left Scottsboro on January 6, 1894, fearing danger from the Skeltons but returned on January 30 because of his wife's illness and stayed secluded until February 4. On February 4, Ross left Scottsboro in a hack with armed companions for Stevenson. The Skeltons pursued on horseback, overtook the party at Stevenson, and killed Ross by shots from behind the depot platform, telegraph poles, and an oil house. In Scottsboro that morning Tally went to the depot. After E. H. Ross sent a warning telegram to R. C. Ross, Tally sent a telegram to Huddleston reading "Do not let the party warned get away" with the instruction "say nothing." Testimony including uncommunicated intentions and attorney-client communications was excluded. The defense offered explanations for the rental of a horse used by Walter Skelton and for Tally's brief meeting with Robert Skelton as the Skeltons departed.