Benefield v. State

• Decision Date: 25 January 1963
• Docket Number: No. 2956,2956
• Citation: 151 So.2d 650
• Parties: J. C. BENEFIELD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 650

151 So.2d 650

J. C. BENEFIELD, Appellant, v. STATE of Florida, Appellee.

No. 2956.

District Court of Appeal of Florida, Second District.

Jan. 25, 1963.

Rehearing Denied Feb. 27, 1963.

Harry Fogle of Fogle, Wilson & Shingler, St. Petersburg, and Lindsey & Cargell, St. Petersburg Beach, for appellant.

Richard W. Ervin, Atty. Gen., Tallahassee, James G. Mahorner, Asst. Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

SCOTT, CHARLES R., Associate Judge.

The appellant, J. C. Benefield, was charged with the crime of grand larceny on a direct information filed by the State Attorney of Pinellas County and was subsequently convicted by a trial jury of the crime of an attempt to commit grand larceny after the Court had previously directed a verdict of acquittal on the charge of grand larceny upon the conclusion of the state's case.

Motion for new trial was denied and appellant was adjudged guilty and sentenced to serve an indeterminate term of six months to two and a half years in State Prison. Nine questions have been assigned for argument on this appeal and the first question to be considered is whether or not the verdict is contrary to the law and the evidence.

The information charged that appellant, J. C. Benefield, did feloniously steal, take and carry away the sum of Three Thousand Dollars ($3,000.00) from Maurice A. Rosenthal on April 27, 1961, in Pinellas County, Florida. A bill of particulars furnished by the state 'averred that the manner in which the said larceny occurred is that the defendant, J. C. Benefield held out and represented to Maurice A. Rosenthal and one Robert A. Hollander that he, the said J. C. Benefield, in consideration of them paying he, the said J. C. Benefield, the sum of five thousand dollars, he, the said J. C. Benefield was capable of and could and would secure for said Maurice Rosenthal, a State of Florida Beverage License theretofore applied for by the said Maurice Rosenthal when in fact and truth, the said J. C. Benefield was without authority or ability to procure said beverage license, which fact was well known to him; that the representation of the said J. C. Benefield as to his ability to procure said beverage license was false and constituted a false or fraudulent representation relied upon by the said Maurice Rosenthal'. * * * 'that said false representations occurred in the City of St. Petersburg, at 1101-62nd Avenue South on the 25th day of April, 1961; at the office of the defendant, J. C. Benefield in the City of St. Petersburg on the 26th day of April, 1961 and on the 27th day of April, 1961 at the home of J. C. Benefield in the City of St. Petersburg, Florida'. * * * 'that the taking of money as alleged in the Information was taken by the said J. C. Benefield with intent to deprive or defraud the true owner thereof of same'.

By reason of the population increase shown by the 1960 Federal census, Pinellas County was entitled to fourteen additional liquor licenses, which were to be issued by the Beverage Department of the State of Florida. The appellant, J. C. Benefield, was a practicing chiropractor in St. Petersburg and had been appointed by the Governor as a member of Governor Bryant's unofficial Advisory Committee in Pinellas County.

On April 21, 1961, Robert Hollander testified he was approached at his place of business by appellant, J. C. Benefield, who represented himself as a St. Petersburg lawyer and said he was calling about the application for a liquor license for Skyway Bowl, which was a bowling alley in St. Petersburg owned by a corporation of which Hollander was a stockholder. Hollander testified appellant represented himself to be a member of the Governor's Patronage Committee and offered at that time and place to help him get a liquor license for five thousand dollars in cash, to be payable in small bills.

Maurice Rosenthal, an officer of Skyway Bowl, testified the appellant came to the Skyway Bowl on April 25, 1961, and identified himself as J. C. Benefield and said he was on the Governor's Patronage Committee and if we wanted a liquor license he could not guarantee it but could practically assure it and if the license was not obtained our money would be returned. Rosenthal also testified that appellant stated that the money had to be in Tallahassee the next day and that he had been ordered to pick the money up by people higher up.

Hollander testified on April 26th he and his uncle, Maurice Rosenthal, went to the office of Dr. Benefield and by that time he knew he was a doctor and not a lawyer. He further testified that their visit to the office was for the purpose of making preparations for the payment of the money. Arrangements were then made for Hollander and Rosenthal to bring three thousand dollars to Dr. Benefield's office the next morning, April 27th, at 10:30 o'clock, and the balance of two thousand dollars was to be paid to Benefield as soon as Hollander's father returned from Colorado. According to Hollander, it was agreed by Benefield that should the liquor license not be issued for any reason at all the money would be returned.

The next morning, April 27th, Hollander and Rosenthal went to Dr. Benefield's office after obtaining the money from their attorney, Herman Goldner, and after notifying the St. Petersburg Times and the St. Petersburg Police Department. Dr. Benefield was not at his office but was sick at home and Hollander and Rosenthal then proceeded to his home in St. Petersburg with two city detectives who waited outside. Upon the detectives being advised by Rosenthal and Hollander that the three thousand dollars had been paid to Dr. Benefield they entered his home without a warrant for his arrest and without a search warrant and found the money in his bedroom.

Thomas E. Lee, Jr., testified on behalf of the state that he was Director of the State Beverage Department and that his duties included the issuance of new quota liquor licenses based on the increase in population. Mr. Lee also testified that he had the sole discretion as to the issuances of the new quota liquor licenses and would have given some weight to a recommendation by Dr., Benefield if it had been received, as well as weight to a recommendation from any other citizen of Pinellas County.

The appellant did not testify but two of the committee members in testifying for the defense stated that a meeting of the eight man committee was to be held on the evening of April 27, 1961, at which time the applicants for liquor licenses would be considered as there were more applicants than licenses available. One of these two committee members, John A. Hanley, a St. Petersburg attorney and former FBI agent, also testified that Dr. Benefield was a member of this committee in April, 1961, and that the committee met quite frequently and at least once a month. Mr. Hanley stated there had been a meeting of the committee on March 23, 1961, at which time Dr. Benefield was present and at the conclusion of the meeting there had been a discussion as to who was going to handle the distribution of new liquor licenses in Pinellas County. Mr. Hanlkey also testified that Dr. Benefield had been the work horse of the committee and 'we just presumed he would try to locate the applicants and if it was presented to us we would at a subsequent meeting make any recommendations that the Governor's office desired.'

Robert A. Hollander testified that the following conversation occurred in the bedroom of Dr. Benefield's home at the time the money was passed to him by Maurice A. Rosenthal:

'Q. What did he say to you then?

'A substantially, 'Good morning, glad to see you could make it', and sorry he was not at the office, that he was not feeling well today.

'Q And then the money was handed to Dr. Benefield?

'A Not immediately. As I say my uncle was expressing some concern to him about handing over such a large amount of money to someone he had known such a short time and no guarantee of getting the money back other than the gentleman's word.

'Q There was no guarantee of getting a license, was there?

'A No, just the assurance.

Q The assurance he would exert his influence in your behalf to get the license?

A At the house he did not guarantee it but he said he could not see any trouble, he could almost guarantee it.

Q 'I can't guarantee it but I can't see any trouble and I can almost guarantee it'.

'A Yes.

'Q And again if he could not get the license the money would be returned to you?

'A Yes. * * *'

'Q How was the money given to Dr. Benefield, how did he come into possession of it, if he did?

'A Well, after we had received more like I explained assurances of the safety of the money and the good chance we would now have of having the license, when we got up to leave my uncle gave him a stack of bills.'

Hollander testified that on his first meeting with appellant he was told by appellant what would have to be done to get a liquor license for Skyway Bowl.

'Q Now, again he told you what he would have to do and what you would have to do, he would have to make a recommendation and you would have to pay him some money?

'A No, not that he would have to make a recommendation. You have it wrong. He was not trying to tell me I don't think that he was powerful enough to go up and get us a license. Only that he had represented and had known some people in Tallahassee and in the State Beverage Commission and the State Legislature that could get a license.

'Q And he would intercede with these people in your behalf for some money?

'A Right. * * *'

'Q Did you believe him on the 21st?

'A No, although I must say I was impressed. Let's say I believed him and I did not believe him. There was certain things I did believe, especially I would say I did think he had some influence in Tallahassee as far as having influence, yes, but as far as that being a pre-requisite for a license that I did not believe. I did believe he could do it, I mean, of...