Blackburn v. State, 74--117

• Decision Date: 23 May 1975
• Docket Number: No. 74--117,74--117
• Citation: 314 So.2d 634
• Parties: Harlan A. BLACKBURN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 634

314 So.2d 634

Harlan A. BLACKBURN, Appellant, v. STATE of Florida, Appellee.

No. 74--117.

District Court of Appeal of Florida, Fourth District.

May 23, 1975.

Rehearing Denied July 18, 1975.

J. Cheney Mason, Orlando, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.

BROWN, CECIL H., Associate Judge.

Appellant, Harlan A. Blackburn, appeals a judgment and conviction in the lower court for the crime of assault with intent to commit murder in the first degree.

The prosecution in this case was commenced on June 5, 1973, by the filing of a two count information in the lower court. Count I charged appellant and one Sam Cagnina with the crime of assault with intent to commit murder in the first degree, for which appellant was convicted and sentenced; Count II charged both defendants with conspiracy to commit the same offense. The prosecution resulted from a shooting which the record reflects occurred on the 11th day of June, 1971, at which time the state's principal witness, one Clyde Lee, was fired upon by an assailant identified by him as Sam Cagnina. In essence, the witness Lee testified that on the morning of June 11, 1971, he talked to the appellant by telephone and stated that appellant instructed him to go to the 'little glass building (a phone booth) to return a telephone call to the appellant. Lee further testified that while he was talking to the appellant over the phone from the booth, a car drove up and Sam Cagnina got out with a gun and started shooting at him. Lee was also permitted to testify, over objection of counsel for appellant, about an incident which occurred on March 19, 1971, the essence of which was that pursuant to another phone call between himself and appellant, that he (Lee) met appellant behind an apartment project in Seminole County and was introduced to a man known as 'Pete's son.' Shortly thereafter appellant left with stated intentions of returning in about five minutes, which he did not do. The said 'Pete's son' stayed and after a conversation of thirty-five or so minutes thereupon pulled a gun and commenced shooting at Lee. 'Pete's son' was later identified by Lee as Cagnina.

The evidence does not reveal appellant was anywhere near the scene of the alleged shooting at the time thereof on either of these occasions.

A severance was granted and the co-defendant Cagnina was tried and acquitted prior to the commencement of the trial of appellant. Count II, charging conspiracy, was dismissed shortly before the trial began. It was a long and tedious trial for the lower court. It commenced on the morning of January 7, 1974 and ended on the morning of January 11 at 11:00 A.M., at which time appellant was sentenced to Division of Corrections for a period of from six months to ten years.

The bill of particulars filed in this case states that appellant '. . . was charged as an aidor (sic) and abettor of the alleged offense.' Presumably defendant was charged under Section 776.011 of the Florida Statutes, which reads as follows:

'776.011 Principal in first degree--Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, Counsels, hires, or otherwise procures such offense to be committed, Is a principal in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commission of such offense.' (Emphasis added.)

To facilitate a full understanding of the position of the appellant we will revert to the use of some terms which apparently have become obsolete by the enactment of § 776.011 aforesaid. The predecessors of that section were § 776.01 and § 776.02 of the Florida Statutes, which before repeal read as follows:

'776.01 Accessory before the fact--Whoever aids in the commission of a felony or is accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon.' (Emphasis added.)

'776.02 Indictment and punishment--Whoever counsels, hires or otherwise procures a felony to be committed, may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction, Or may be indicted and convicted of substantive felony, whether the principal has or has not been convicted or is or is not amenable to justice; and in the last mentioned case may be punished in the same manner as if convicted of being an accessory before the fact.' (Emphasis added.)

Thus the terms 'principal in the second degree' and 'accessory before the fact' appear to have passed into the judicial history of the State of Florida. We now have only principals in the first degree. Newman v. State, 196 So.2d 897 (Fla.1967); State v. Roby, 246 So.2d 566 (Fla.1971); and Jacobs v. State, 184 So.2d 711 (Fla.App.1966). In any event, it appears from the record that Sam Cagnina was charged as what we know to be a principal in the first degree, and that appellant was likewise charged with the same substantive offense. The bill of particulars simply characterized the nature of the proof to be offered. The evidence actually offered pointed toward what was previously known to be 'an accessory before the fact.' The difference at that time in the respective offenses is explained in the case of Neumann v. State, 116 Fla. 98, 156 So. 237 (1934), as follows:

'An accessory before the fact is one who is absent at the time of the commission of a felony, but who has beforehand counseled, hired, or otherwise procured the perpetrator to commit it as defined in section 7110, C.G.L., section 5008, R.G.S. A principal in the second degree is one who 'aids in the commission of a felony' as referred to in section 7110 C.G.L., supra, by being present, aiding and abetting the commission of the felony at the time it is perpetrated. The latter's presence at the time of commission of the crime may be actual or constructive. Kauz v. State, 98 Fla. 687, 124 So. 177; Albritton v. State, 32 Fla. 358, 13 So. 955.'

Appellant has supported by appropriate assignments of error ten points. Excellent and extensive briefs have been filed and most elucidating argument presented by both parties. For this reason, we will discuss the points in the declining order of their merit, if any.

Points I and II assail the sufficiency of the evidence in one respect or another. Appellant asserts the failure to establish a prior conviction of Cagnina by competent record evidence is fatal to the state's case here. This contention is rejected. As far back as 1934, the supreme court in Neumann, supra, held that an 'accessory before the fact,' if charged with the substantive offense, under the then existing statute (i.e., § 7111 C.G.L. being the predecessor of said Section 776.02, Florida Statutes), could be tried and sentenced without regard to the principal offender. That case was involved. The question was determined if the defendant there had been charged as a principal or as an accessory before the fact and the additional question of whether or not the said charge was made under the then existing common law or under the sections of the statutes aforesaid. In its explanation, the supreme court said:

'. . . (B)ecause of the clear distinction which is preserved in the common law and by our statutes between principals and accessories, it is essential that, in charging one as an accessory before the fact, the distinction between principals and accessories be preserved in the manner of stating the charge. This is so, because one charged as an accessory before the fact to a felony cannot, Unless charged with a substantive offense under the statute, be tried before the principal offender is tried; nor can he be sentenced before the principal has been sentenced. . . .'

'On the other hand, a principal in the first degree and a principal of the second degree are punishable alike, both being equally guilty, And the court may, in its discretion, try the principal in the second degree before the principal in the first degree. Nor is it material which one is alleged to have actually committed the felonious act, if it is duly proven that one committed the act and that the other was present and aided and abetted the alleged felony. . . .' (Emphasis added.) 156 So. at 240.

That position was followed and affirmed in the subsequent case of State v. Peel, 111 So.2d 728 (Fla.App.1959), in the following language at 732:

'If the accessory is indicted in the common-law mode the common-law rules control the trial of the accessory, and conviction of the principal is an essential prerequisite to the guilt of the accessory.

. . . If the accessory before the fact is indicted for the substantive offense, he may be convicted of the crime charged and his guilt or innocence is not dependent on or affected by that of the principal in the first degree. In such cases the substance of the issue is whether the person is guilty of the crime charged, whether as principal in the first degree or second degree, or as an accessory before the fact. And the fact that such person is indicted with another does not affect the issue on which such person is tried, since guilt is not dependent on the conviction of the other. . . .'

More recently the Supreme Court of Florida in Newman v. State, supra, said:

'We do not believe the failure to indict another or others along with the defendant or the failure to indict him singly as an aider or abettor is prejudicial to him or contrary to essential requirements of law. F.S. Section 776.011, F.S.A. was intended to obviate the necessity of indicting persons as aiders or abettors. . . .' 196 So.2d at 900.

Some of the cases cited by appellant appear to require a conviction of the original offender as a predicate to conviction of an aider and abettor. However, this is no longer the law. Those cases were...