Ard v. State

• Decision Date: 07 January 1959
• Parties: Dusky ARD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 38

108 So.2d 38

Dusky ARD, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida.

Jan. 7, 1959.

David H. Levin, Pensacola, for appellant.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

THOMAS, Justice.

The appellant was convicted of receiving stolen property with knowledge that it had been stolen and was sentenced to one year in the penitentiary.

Sentence was imposed 17 October and notice of appeal was filed 23 October, both in 1956. Under the provisions of Sec. 26(6) of Article V of the Constitution as amended 6 November of that year, F.S.A., the court retained jurisdiction of the cause. The transcript finally reached this court 7 August, the last brief came in 19 September, and the oral argument was presented 5 November, all in 1958.

At the trial the appellant did not testify. Despite this situation the assistant county solicitor in his argument to the jury made the following comment:

'Another rule of law that the Court will charge you on is this. When you are found in possession of stolen property, then the Burden becomes on you, the burden is on you to make a reasonable explanation of how you got it, and if no explanation is forthcoming that you find reasonable then the law is that the Jury has the right to bring in a verdict of guilty on that fact a person found in possession of stolen property. Now, like I pointed out to you, that is undenied here that this property was stolen, and it is undenied that this defendant moved two cartons of cigarettes, two cases of cigarettes himself in the trunk of the car, one case into the Penny Profit and brings back twenty dollars first, at least that is the part he accounted for, and then he gets five dollars more. Now, the Court will charge you that is the law. Ordinarily, as Counsel has remarked to you, I believe he has, or maybe I have, that the burden is on the State to prove the Defendant guilty beyond a reasonable doubt. That is true, but it is also the law that when a defendant is found in possession of stolen property the burden then shifts to him to give a reasonable explanation of how he got into it. I ask you today if a reasonable explanation has been forthcoming. He has subscribed to a statement.' (Italics supplied.)

On many occasions this court has dealt with arguments that were challenged on the ground they violated the statute, Sec. 918.09, Florida Statutes 1955, and F.S.A., inhibiting mention of a defendant's failure to take the witness stand, for instance, in Clinton v. State, 56 Fla. 57, 47 So. 389, and in the recent decision in Trafficante v. State, Fla., 92 So.2d 811.

In the present case a slightly different question is posed because of the law with reference to a presumption that presents itself when a person is found in possession of goods recently stolen and does not explain his possession.

Often the line of demarkation between proper comment upon matters proved, and not refuted, and conflicts apparent in testimony on one hand, and references to failure of contradiction of the evidence of the State, supporting material elements of the charge, that amount to observations on the absence of a denial from a defendant himself, on the other hand, is most indistinct.

Here we are confronted with the obligation of securing to the defendant the protection of the statute which reads: 'nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf * * *' while recognizing the rule with reference to the explanation of a person possessing goods lately stolen who subsequently faces prosecution for having the property.

It would appear at a glance that although the defendant has the opportunity to explain, the prosecutor should not mention his failure to seize it. Upon scrutiny, however, the problem is more real than apparent.

As long ago as 1885, in Tilly v. State, 21 Fla. 242, this court said that the exclusive possession of stolen property recently stolen was sufficient to put upon the defendant the burden of explaining how he obtained it and upon his failure to do that "to warrant the jury in convicting him of larceny." In that case the defendant offered no testimony and the unexplained possession was held sufficient to support the verdict of guilty. Also, conviction may rest upon possession alone if the jury disbelieves the defendant's story about how he came to possess recently stolen property. Bargesser v. State, 95 Fla. 401, 116 So. 11.

No presumption of law arises from lack of explanation in such cases, Kilcrease v. State, 96 Fla. 264, 117 So. 862, but the failure to explain is a circumstance from which an inference of guilt may be derived when considered with the other facts of the case, Bargesser v. State, supra, although, as appears from the opinion in Tilly v. State, supra, the possession unexplained may justify conviction in the absence of any other circumstances.

In Ferguson v. State, 157 Fla. 324, 25 So.2d 799, a conviction was upheld largely because the explanation by the defendant appeared flimsy in view of the other circumstances of the case. The explanation was given by the accused to a deputy sheriff but the defendant did not testify.

From the cases cited and others we have consulted, we are convinced the rule is firmly established that if a person is found to possess property recently stolen and gives a credible account of how he came by it, the State assumes the burden of proving it untrue, but the jury in the exercise of their prerogative to determine credibility may convict on proof of possession despite the lack of testimony directly...