Autrey v. State

• Decision Date: 14 July 1927
• Citation: 114 So. 244,94 Fla. 229
• Parties: AUTREY v. STATE.
• Court: Florida Supreme Court

114 So. 244

94 Fla. 229

AUTREY v. STATE.

Florida Supreme Court, Division A.

July 14, 1927

Rehearing Denied Oct. 13, 1927.

Error to Circuit Court, Dade County; A. J. Rose, Judge.

James Autrey, alias Jimmie, was convicted of assault with intent to commit rape, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Failure with full liberty to speak, to deny accusation may be considered as tending to show guilt. Where, on being accused of crime with full liberty to speak, an accused remains silent, his failure to reply or deny is a relevant circumstance which may be considered in connection with other facts and circumstances established by the evidence as tending to show guilt.

Probative force of accused's failure to deny accusatory statements is not great, and such evidence should be regarded cautiously. The probative force of evidence consisting of accusatory statements made in the presence of the accused and not denied or replied to by him, is not great, and such evidence is to be received with caution, though it is admissible, not as original evidence of the truth of the fact asserted, but to show an implied admission by silence.

To render silence in presence of accusation, admissible circumstances and statements must naturally or reasonably call for reply, and accused must have had opportunity or right to deny charges. When it is sought to show the silence of the accused as an implied admission of the truthfulness of accusatory statements of others made to or in the presence of accused, it must first appear that the circumstances and statements were such as would naturally or reasonably call for a reply, and it must also affirmatively appear that the accused had the opportunity and right under the circumstances to deny the truthfulness of the charges made against him.

Failure to deny accusations, though not alone sufficient to establish identity or guilt of accused may with other facts be made basis for conviction. Although the mere silence of the accused when accusatory statements are made against him by another is not alone sufficient to establish the identity or guilt of the accused when unsupported by other facts or circumstances, it is a relevant circumstance that may be considered with the other facts established by the evidence and from it, together with other supporting facts or circumstances, guilt may be lawfully inferred.

COUNSEL

Gordon R. Broome and H. C. Nicholas, both of Miami for plaintiff in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

STRUM J.

Upon an indictment charging the offense of rape, plaintiff in error, who will hereinafter be referred to as the defendant, was convicted of assault with intent to commit rape, and has taken writ of error to the judgment of conviction.

The principal point relied on for reversal is the question of identity of the defendant.

The prosecutrix testified at the trial, but was not asked by the state to identify the defendant as the person committing the assault, a circumstance diligently stressed by the defendant upon this writ of error in his argument upon the question of the sufficiency of the evidence of identity.

Between two and three weeks after the commission of the offense the defendant, together with a companion, was apprehended in Pensacola, and returned in custody to Miami, charged with the offense in question. Shortly after his return to Miami, the defendant was questioned by a member of the police force of that city under circumstances which indicate no improper inducements or influences. This conversation related to incidents occurring at the home of the prosecutrix on the night of the offense in question, amongst which was the theft of some clothing.

In custody of a deputy sheriff, and accompanied by the member of the Miami police force above referred to, the defendant was then taken to the home of the prosecutrix, where, according to the testimony of the police officer just referred to, the following incidents occurred:

'Q. When he (the defendant) got over to the house, what did he say or show you?

'A. Well, he didn't say anything until after we had got into the room where Mrs. S. was.

'Q. All right; what did he do or say?

'A. He went in there and stood at the foot of the bed, and Mrs. S. got up and looked at him, and looked at me and pointed her finger at him and said, 'You are the man.' Then they had him go out from the window to the right from where she was and walk towards her, and, when he came up close to her, she again said, 'You are the man.'

'Q. Do you know where Autrey (the defendant) is now?

'A. In the courtroom here.

'Q. Which man is he?

'A. The man sitting right there.

'Q. Well, which one? Come over and point him out.

'A. This man here (indicating).

'Q. Is that the man that Mrs. S. identified to you in her bedroom in the presence of Deputy Sheriff Kennedy and her two sons as being the man who raped her?

'A. Yes, sir.

'Q. Is that the man that told you in your office after you warned him that he was in the house of Mrs. S. on the night of November 3, 1926, and that he stole some clothes from it?

'A. Yes, sir.'

The incidents and conversation just related in the testimony of the police officer were also testified to in substance by the deputy sheriff, who was present.

No objection was interposed by the defendant to any of the testimony referred to.

The evidence shows that, neither at the time of the accusatory statements above set out, nor at any subsequent time, did the accused deny or dispute them, nor did he make any comment thereon, other than the equivocal statement, as testified to by the deputy sheriff, that defendant said he was in the front room of the house, but denied having been in the back room, the testimony tending to show that the attack on the prosecutrix occurred in the latter room. The defendant appears to have been at liberty to speak, and subjected to no restraint.

The defendant contends that the testimony of the police officer and the deputy sheriff as to the identification of the defendant by the prosecutrix was not admissible as an admission by silence on the part of the defendant, because the defendant did not understand that he was being accused of rape, and that the circumstances and statements were not such as to reasonably call for a reply from him. The defendant also contends that the entire testimony of these witnesses relating to the identification was hearsay.

The rule concerning the admissibility of evidence relating to an admission of guilt by acquiescence or silence or other conduct, and the exceptions thereto, is well stated in 16 C.J. 631, as follows:

'Where on being accused of crime, with full liberty to speak, one remains silent, his failure to reply or to deny is relevant as tending to show his guilt; and the accusatory or incriminating statement is admissible, not as evidence of the truth of the fact stated, but to show accused's admission by silence. Silence alone, however, raises no legal presumption of guilt. Its effect is for the jury, and from it, in connection with other facts and circumstances, they may infer that accused is guilty. The probative force of this kind of evidence is not great, and it is to be received with caution. * * * For the silence of accused to be competent evidence against him, or at least to be entitled to weight, as an admission of the truthfulness of the statements of others made to him or in his presence, the circumstances and statements...