Adjmi v. State, 31785

• Decision Date: 29 May 1963
• Docket Number: No. 31785,31785
• Citation: 154 So.2d 812
• Parties: Joseph ADJMI, Charles Adjmi, Emile Halfon, and Albert George, Petitioners, v. The STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 812

154 So.2d 812

Joseph ADJMI, Charles Adjmi, Emile Halfon, and Albert George, Petitioners, v.The STATE of Florida, Respondent.

No. 31785.

Supreme Court of Florida.

May 29, 1963.

Rehearing Denied June 26, 1963.

Sibley, Grusmark, Giblin, King & Levenson and Irving B. Levenson, Miami Beach, for petitioners.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for respondent.

HOBSON, Justice(Ret.).

This case is before the Court upon a petition for certiorari directed to the District Court of Appeal, Third District.The petitioners were defendants in the Criminal Court of Record in and for Dade County, Florida, and occupied the position of appellants on appeal to the said District Court of Appeal.

The petition for certiorari is predicated upon the theory of conflict between the decision of the said District Court and several prior decisions of the Supreme Court of Florida.

It is alleged by petitioners that the information filed against them contained but a single count charging a single act of grand larceny by false pretenses.They say however that the State over the objection of petitioners' counsel was permitted 'to prove at least fourteen (14) occasions separated in terms of time from each other by approximately one week on the average with two days as the shortest period and one full month as the longest when the petitioners actually received money or property belonging to and parted with by the prosecutrix.'After the State had declared in its opening address to the jury that it intended to prove the aforementioned enumerated occasions when the petitioners allegedly unlawfully separated the prosecutrix from her money of property counsel for petitioners immediately moved the trial court for a compulsory election by the State as to which single act of suggested grand larceny by false pretenses it would rely upon for conviction.This motion was denied.

Consequent upon this ruling the State did in fact prove the fourteen separate transactions, two of which took place in Pittsburgh, Pennsylvania, a locality far removed from the jurisdiction of any state court of Florida.Upon the conclusion of the State's case in chief, petitioners moved anew for a compulsory election by the State of a single act of grand larceny by false pretenses that would be relied on for conviction under the single count in the information.This motion was also denied.Upon the conclusion of the taking of all testimony the Court charged the jury, and submitted the case to it with the result that a general verdict of 'Guilty, Grand Larceny' was returned.Upon appeal the District Court, Third District, affirmed the judgment which was entered by the trial court pursuant to the jury's verdict.

Petitioners' primary contention is that this decision is not only erroneous and contrary to established precedent but in holding that under the facts of this case as set forth on the face of the opinion of the District Courtthe State was not required to make a compulsory election, said Court's decision is in direct conflict on the same point of law with many of the Supreme Court's previous decisions.¹

We deem it appropriate initially to decide this first contention of petitioners because if it is well taken this Court undoubtedly has jurisdiction to entertain the petition for certiorari.Moreover if this position is well founded and if this Court adheres to its former decisions to the effect that the socalled 'single impulse theory' is not tenable our decision must be one quashing the decision of the District Court and directing that said Court enter its mandate of reversal.

Petitioners pose their main query in the following language:

'WHETHER OR NOT THE STATE MUST ELECT ONE OF NUMEROUS ACTS OF GRAND LARCENY BY FALSE PRETENSES PUT IN EVIDENCE IN A PROSECUTION FOUNDED ON AN INFORMATION WHICH CHARGES, IN A SINGLE COUNT, A SINGLE ACT OF GRAND LARCENY BY FALSE PRETENSES?'

In its brief the State says that the foregoing query presented by petitioners should be framed as follows:

'WHETHER OR NOT THE SUPREME COURT OF FLORIDA WILL REVIEW BY CERTIORARI THE DECISION OF THE DISTRICT COURT OF APPEAL RELATING LATING TO AN ASPECT OF THE RECORD ANALOGOUS TO THE SUFFICIENCY OF THE EVIDENCE TO-WIT: THE ELECTION OF CERTAIN ACTS OF GRAND LARCENY WHICH OCCURRED OVER AN EXTENDED PERIOD PURSUANT TO A SINGLE SUSTAINED CRIMINAL IMPULSE IN EXECUTION OF A GENERAL FRAUDULENT SCHEME, WHICH DECISION REVEALS NO DIRECT OR PRIMA FACIE CONFLICT WITH ANY DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT OF FLORIDA ON THE SAME POINT OF LAW.'

The question submitted by the State can have but one answer if it is an appropriate query.Certainly if the decision of the District Court in this or any case 'reveals no direct or prima facie conflict with any decision of another District Court of Appeal or the Supreme Court of Florida on the same point of law' the jurisdiction of this Court cannot be invoked.It is apodictic that under such asserted fact the 'conflict' avenue of approach to this Court's jurisdiction is unavailable.We are convinced however that the decision of the District Court herein, predicated upon the facts enucleated in its opinion, is in direct conflict on the same point of law with several of this Court's previous decisions.

In the Hamiltoncase, supra, the accused was charged in a single count with a single act of unlawfully receiving stolen property.At the trial the State proved, by the testimony of the prosecuting witness who was an employee of Burdine's Inc., that on three separate occasions to-wit: Before June, 1935 and during June of the same year and in October of that year the accused did with scienter receive stolen goods which the prosecuting witness had stolen from Burdines.In that case defense counsel moved the trial court to compel the State to elect upon which one of the three transactions it would rely for conviction.This motion was denied.The State placed in evidence all three transactions and the jury failed to specify in its general verdict of guilty upon which single act it found the defendant guilty.

In that casethis Court stated:

'The defendant made a motion to quash the information in the court below, but of course this question could not be successfully raised thereby, because on its face the information charged only a single offense.However, the point that the court erred in refusing to make the State elect upon which articles received by the defendantthe State would maintain and continue its prosecution was directly raised twice during the introduction of the State's testimony and again in the motion for new trial.It was only when the State produced its testimony that it was made to appear that the State had intended to charge several different offenses, or at least intended and endeavored to prove several distinct offenses, under the single count in the information.The error might have been cured if the court had required the State to elect which of these offenses it was relying upon. * * *'

This Court's judgment was couched in the following language: 'Judgment is reversed.'

The case of Green v. State, supra, involved a single count of grand larceny for the asseverated theft of seven hogs allegedly belonging to the same owner.The proof at trial disclosed the fact that two hogs came from one place and the remaining five hogs came from another.It was evident from the testimony that if the accused stole the seven hogs he necessarily did so by taking them from separate places at different times.In the Green case defense counsel moved the Court to compel the State to elect which of the two transactions it would rely upon for conviction.The motion was denied and of course the State did not elect.The jury returned a general verdict which did not designate upon which of the two transactions the defendant had been found guilty.In finding reversible error and granting an absolute discharge to the defendantthe Supreme Court of Florida adopted and pronounced the rule that:

'When two distinct offenses are charged in an indictment or developed by the evidence, the district attorney should be required to elect on which of the charges he intends to claim a conviction, as soon as he has examined the witnesses far enough to identify the transaction, and in all cases the election must be made before the accused offers his testimony.'

In Connor v. State, supra, this Court held that the crime of larceny by false pretenses is effected upon the receipt of, or upon obtaining, the property and we quote:

'* * * The receipt or obtaining of the property is the consummation of the offense, and in the absence of a valid qualifying statute the place of its receipt is the sole locality of jurisdiction.If the false pretenses are made in one jurisdiction, but the property is obtained in another, the prosecution must in the absence of such a statute, be instituted in the latter jurisdiction.'

We digress for the moment to make the observation that had the State been required to specify, as it should have been, upon which one of the several transactions it elected to stand and had such election been one of the transactions which allegedly took place in Pittsburgh, Pennsylvania, this case would have been dismissed--pronto--for lack of jurisdiction in the Criminal Court of Record in and for Dade County, Florida.No one can delve into the minds of the jurors and conclude with certainty that it was not one or both of the transactions which took place in Pennsylvania upon which the jury found the petitioners by a general verdict to be 'Guilty, Grand Larceny.'This paradox emphasizes one of the prime factors underlying the salutary rule set forth by this Court in its decision in the case of Campbell v. State, 155 Fla. 359, 20 So.2d 127.

It is contended by the State that the District Court in its decision merely enunciated a novel principle of law when it adopted the theory of 'a single impulse' in the...