Albano v. State

Citation89 So.2d 342
PartiesPhillip ALBANO, Appellant, v. STATE of Florida, Appellee.
Decision Date07 September 1956
CourtUnited States State Supreme Court of Florida

Frank Ragano and Edward I. Cutler, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., and Moie J. L. Tendrich, Asst. Atty. Gen., for appellee.

THORNAL, Justice.

Appellant Albano seeks reversal of a judgment of conviction entered pursuant to the verdict of the jury finding him guilty of violations of the lottery laws.

The questions to be determined are whether the trial judge properly allowed evidence to the effect that while in custody the appellant remanded silent when accused of the violations by two witnesses, allegedly accomplices, and whether the trial judge properly charged the jury with reference to the weight to be given to evidence with reference to the failure of an accused to deny his guilt under such circumstances.

By direct information Albano was charged in four counts with violation of the lottery laws, Section 849.09, Florida Statutes, F.S.A. In summary the charges were: (1) that he did unlawfully set up and conduct a lottery for money, (2) that he did unlawfully dispose of money by means of a lottery, (3) that he did unlawfully have in his possession certain implements and devices for conducting a lottery, and (4) that he did unlawfully have in his possession certain tickets in a lottery for money.

Two Negroes were apprehended and after search, they were found to be in possession of numerous bolita tickets and substantial sums of money. They advised the deputy sheriffs that they worked for Albano. The latter was thereupon apprehended after his grocery store and attached shed were thoroughly searched with his consent, and in the course of which search substantial numbers of bolita tickets were found. Albano was taken to the 'squad room' of the County Jail where the two Negroes, in his presence, again admitted their activities as salesmen and pickup men in the bolita business and stated that they worked for Albano. They also later testified to the same thing and further that they accounted for the tickets to him, turned over all the money to him and in exchange for their services received fifteen percent of the gross sales. It is obvious from the record that they did a flourishing business. When thusly accused in the 'squad room', Albano remained silent although previously he had consistently denied any connection with the bolita business.

At the trial testimony was admitted to the effect that when accused by the Negroes in the squad room, the defendant stood mute. In addition to this, however, both Negroes testified at great length and in detail as to their activities as salesmen and pickup men for the defendant. The incriminating evidence found in the defendant's grocery store was likewise admitted in evidence. In fact, the record at the trial was thoroughly saturated with evidence of the guilt of the appellant who offered no evidence whatsoever in his own defense to overcome the substantial amount of evidence offered by the State to establish his guilt.

The jury found the appellant guilty on all four counts, a new trial was denied and the judgment entered sentencing him to a term in the state prison. Reversal of this judgment is sought by this appeal.

Appellant contends that the judgment should be reversed because it was error to allow the evidence with reference to his failure to deny his guilt when accused by the incriminating witnesses while he was in custody and also that the trial judge should have instructed the jury that such evidence should be received with great care and caution.

The State seeks to sustain the conviction and ensuing judgment by maintaining that the evidence in question was properly admissible, that even if it wasn't it was not objected to at the trial, that the charge given by the judge was correct and that even if it were not, the failure to charge the jury in the detail requested by the appellant was harmless error.

Although there has been a tendency on the part of some courts to refuse the admissibility of evidence as to the failure of an accused to deny or dispute accusations of guilt when he has an opportunity or right to do so, this court has committed itself to the rule that when one in custody accused of a crime has full liberty to speak and remains silent in the presence of accusations of his guilt, then evidence of such silence may be considered with other facts and circumstances established by the evidence as tending to show guilt. While silence alone certainly raises no legal presumption of guilt, its effect is for the jury which under proper instructions may consider it in connection with other facts and circumstances as some evidence of guilt. See Autrey v. State, 94 Fla. 229, 114 So. 244.

Obviously, the prompt denial by the accused of such accusatory statements destroys entirely the ground for admitting it. Here the appellant stood mute when so accused. While adhering to the rule above announced, we should point out further in disposing of this question on this particular record that the evidence in question was permitted at the trial in several instances without the slightest objection by the defendant. The actual allowance of this evidence in this case therefore is not available to this appellant as a basis for assaulting the verdict and judgment.

In Autrey v. State, supra, we did hold...

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12 cases
  • Wadsworth v. State, 596
    • United States
    • Court of Appeal of Florida (US)
    • August 14, 1967
    ...Roberts v. State, 1944, 154 Fla. 36, 16 So.2d 435; Fletcher v. State, Fla.1953, 65 So.2d 845; Mankowski v. State, supra; Albano v. State, Fla.1956, 89 So.2d 342; Conner v. State, Fla.1958, 106 So.2d 416; Urga v. State, Fla.App.1963, 155 So.2d 719. To do otherwise disregards the plain mandat......
  • State v. Butler, A--72
    • United States
    • United States State Supreme Court (New Jersey)
    • April 4, 1960
    ...of the accusatory statement or the charge against him. See Scott v. State, 249 Ala. 304, 30 So.2d 689 (Ct.App.1947); Albano v. State, 89 So.2d 342 (Fla.Sup.Ct.1956); cf. People v. Simmons, 28 Cal.2d 699, 172 P.2d 18 (Sup.Ct.1946); Note, 35 Calif.L.Rev. 128 (1947); Note, 6 U.C.L.A.L.Rev. 593......
  • State v. DiGuilio, 65490
    • United States
    • United States State Supreme Court of Florida
    • July 17, 1986
    ......State, 67 So.2d 321 (Fla.1953); Rowe v. State, 87 Fla. 17, 98 So. 613 (1924). Prior to Miranda, however, Florida followed the rule that a defendant's silence, when faced with accusatory statements while in custody, was admissible as evidence tending to show guilt. Albano v. State, 89 So.2d 342 (Fla.1956). The per se reversal rule for comments on the right to remain silent was first adopted in Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967). This Court adopted Jones and the per se rule in Bennett v. State, 316 So.2d 41 (Fla.1975), and has approved the rule in ......
  • Brown v. State, 48229
    • United States
    • United States State Supreme Court of Florida
    • February 1, 1979
    ...Relationship Between the Hearsay Rule and the Confrontation Clause, 52 Tex.L.Rev. 1167, 1181-93 (1974).25 See, e. g., Albano v. State, 89 So.2d 342 (Fla.1956); Kemp v. State, 48 So.2d 756 (Fla.1950); Edwards v. State, 155 Fla. 550, 20 So.2d 916 (1945); Autrey v. State, 94 Fla. 229, 114 So. ......
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