Birge v. State

• Decision Date: 20 February 1957
• Citation: 92 So.2d 819
• Parties: Carl Jefferson BIRGE, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 819

92 So.2d 819

Carl Jefferson BIRGE, Jr., Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida, Special Division A.

Feb. 20, 1957.

Zach H. Douglas, Jacksonville, for appellant.

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

THORNAL, Justice.

Appellant Birge, who was defendant below, seeks reversal of a judgment of conviction entered pursuant to a jury verdict finding him guilty of breaking and entering with intent to commit a felony, to wit, grand larceny.

Although several questions are presented we rest our ultimate conclusion on a determination of whether the appellant was erroneously denied the privilege of the opening and closing arguments to the jury.

Our decision requires no detailed delineation of the facts. After extensive testimony, the appellant was found guilty by the jury's verdict.

In the course of the presentation of the State's case a police officer testified. On cross-examination by appellant's counsel a question arose as to two shirts that were taken from appellant and a co-defendant. When the witness referred to the shirts, the following transpired 'Q. They were the shirts they had on when they were brought to the police station under arrest. A. Yes.

'Mr. Hubbard: I am not offering them. I just want to see them.

'The Court: You have exhibited them to the jury--besides the defendant.

'Mr. Hubbard: They were exhibited, opened in front of the box.

'The Court: You know the rule. Let the record show these shirts were opened by the witness and held up in view of the jury at the request of Mr. Hubbard, counsel for Birge.

'Mr. Hubbard: Does Your Honor rule that loses us the right to open and close for the defendant Birge?

'The Court: Yes, sir. You helped me establish the rule.

'Mr. Hubbard: I may collaborate with one of the other attorneys.

'The Court: You can't. You represent Birge and the record shows you don't have anything to do with the other two. Mr. Engel can open and close if he doesn't do something in the meantime.'

Mr. Hubbard, mentioned in the quotation, was the Attorney for the appellant.

The State concluded the presentation of its case with this witness. The appellant testified in his own behalf but placed no other testimony or evidence in the record.

The transcript of the trial contains no further reference to the order of presentation of closing arguments. Upon the entry of the jury verdict, the trial judge sentenced appellant to five years in the state prison. Reversal of this judgment is now sought.

Appellant contends that the record shows that the trial judge erroneously denied his right to the opening and closing arguments to the jury. The appellee contends that the silence of the record at the close of the trial justifies the presumption that the trial judge properly handled the case by changing his ruling and permitting the appellant to close.

Section 918.09, Florida Statutes, F.S.A., extends to a defendant in a criminal case the privilege of testifying in his own behalf. The cited statute concludes with the following:

'* * * and a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.'

We have consistently held that the right guaranteed to an accused by the cited statute is a vested procedural right the denial of which constitutes reversible error. Lopez v. State, Fla.1953, 66 So.2d 807; Smith & State, 155 Fla. 148, 19 So.2d 698; Hall v. State, 119 Fla. 38, 160 So. 511; Landrum v. State, 79 Fla. 189, 84 So. 535; Meade v. State, Fla.1956, 85 So.2d 613. As recently as Wright v. State, Fla.1956, 87 So.2d 104, we recognized the preposition that while a trial judge may exercise some discretion in arranging the order of addresses to the jury, he cannot deprive an accused of the right to the closing argument when he has offered no testimony except his own.

In the instant case the mere exhibiting of the shirt before the jury by the State's witness did not constitute the introduction of testimony by the defendant. The appellant's counsel specifically stated that he had no intention of offering the shirt in evidence. Actually he could not have properly done so while the witness was under cross-examination. In this instance he did not even have the article marked for identification. Consequently the exhibiting of the shirt by the witness under the circumstances here presented was not sufficient to justify denying to appellant the right to have his counsel close the arguments. Actually the State does not contend that it was. Talley v. State, 160 Fla. 593, So.2d 201; Haddock v. State, 121 Fla. 167, 163 So. 482.

In regard to the State...