Blanco v. State

• Decision Date: 17 March 1942
• Citation: 7 So.2d 333,150 Fla. 98
• Parties: BLANCO v. STATE.
• Court: Florida Supreme Court

7 So.2d 333

150 Fla. 98

BLANCO v. STATE.

Florida Supreme Court

March 17, 1942

Rehearing Denied April 17, 1942.

Manuel Blanco was convicted of robbery, and he appeals.

Appeal from Criminal Court of Record, Hillsborough County John R. Himes, Judge.

Wm. C. Pierce and Zewadski & Pierce, all of Tampa, for appellant.

J. Tom Watson Atty. Gen., Millard B. Conklin, Asst. Atty. Gen., and Woodrow M. Melvin, Sp. Asst. Atty. Gen., for appellee.

CHAPMAN, Justice.

On February 8 1941, George Chance, Manuel Blanco, Elmo Guttierez, and Santiago Posados were by the County Solicitor of Hillsborough County, Florida, in a single count informed against for armed robbery of the Royal Theatre, situated in the City of Tampa, Florida, by feloniously robbing it of the sum of $53.50. The money, when taken on February 2, 1941, was in the possession of Mary Hernandez. Motions to quash the information were made and denied. Santiago Posados, Elmo Guttierez and Manuel Blanco were placed upon trial and on April 4, 1941, by a jury found guilty.

On April 21, 1941, Manuel Blanco, through counsel, filed a motion for a new trial, which was heard, considered and granted on June 23, 1941. On July 22, 1941, Manuel Blanco was placed upon trial in the Criminal Court of Record of Hillsborough County for the second time on the original information, and on July 28, 1941, was by a jury found guilty of unarmed robbery as charged in the information. A motion for a new trial was made and denied, when the trial court sentenced Manuel Blanco to the State Prison at hard labor for a period of ten years. An appeal has been perfected to this Court to review the sentence and judgment of conviction.

The first question posed for adjudication is, viz.: Where in a prosecution for robbery the property taken is alleged in the information to be a certain sum of money 'the property of the Royal Theatre', and at the trial the evidence reveals that the money was taken from the Cashier of said Theatre while she was working in the ticket booth, and that although at the moment of the robbery she had not checked up the day's receipts, she had 'picked up all of the money', is the ownership of the money sufficiently averred or established? The information alleged that the ownership of the $53.50 alleged to have been feloniously taken was the property of the Royal atre. It is contended by counsel for appellant that the information is fatally defective because of this allegation of ownership of the stolen property. Counsel cite many decisions of this Court to sustain their position, beginning with Stephens v. State, 92 Fla. 43, 109 So. 303. Also Pippin v. State, 102 Fla. 1124, 136 So. 883. It was held therein that the indictment should allege the ownership of the property, as well as the name of the person from whom it was taken. If the property alleged to have been taken was the property of the appellant, a crime would not have been committed. appellant here did not assert ownership of the $53.50, and neither did he question the ownership of this money as being the property of the Royal atre. appellant submitted to the jury testimony to show that at the time the Royal atre was robbed he was attending another theatre in the City of Tampa. cases of Croft v. State, 109 Fla. 188, 146 So. 649; Aldrich v. State, 123 Fla. 352, 166 So. 838; Alvarez v. State, 128 Fla. 202, 174 So. 333; Hamilton v. State, 133 Fla. 481, 182 So. 854, have been reviewed. Support of counsel's contentions may be found in some of these citations. It is our conclusion that these several decisions have been placed at rest by Section 114 of Chapter 19554, Acts of 1939, Laws of Florida (commonly referred to as the Criminal Code), and Subsections (2) and (3) thereof, viz.:

'Section 114. Name of person other than defendant. * * *

'(2) It is sufficient for the purpose of describing any group or association of persons not incorporated to state the proper name of such group or association, or to state any name or designation by which the group or association has been or is known or by which it may be identified, or to state the name or names of one or more persons in such group or association, referring to the other or others as 'another' or 'others'.

'(3) It is sufficient for the purpose of describing a corporation to state the corporate name of such corporation, or any name or designation by which it has been or is known, or by which it may be identified, without an averment that the corporation is a corporation or that it was incorporated according to law.'

The money was taken from Miss Hernandez while she was at the ticket window of the Royal Theatre. Prior to the robbery she was selling tickets to patrons and customers of the Royal Theatre and was prevented from checking the cash on hand against the tickets sold because of the robbery. It is reasonable to assume that the tickets for the second or last show of the evening had been sold around 9:30 P. M., on February 2, 1941, when the robbers appeared and by force took the money. Another employee of the Royal Theatre was present when the money was taken. The jury had sufficient testimony before it to sustain their conclusion that the property stolen was the property of the Royal Theatre.

The second question posed for adjudication is, viz.: Where one defendant in a criminal case is tried alone, may the statements or confessions of his co-defendants, implicating him in the offense charged, which statements were repeated by such co-defendants in his presence, and the defendant assented to same, be introduced in evidence against him?

It is fundamental that a confession made by an accomplice could not be admitted in evidence as a confession against another. The confession would be admissible as evidence only as against the party making the confession. See Stoutamire v. State, 133 Fla. 757, 183 So. 316. It is the duty of the trial court, under the law, to so instruct the jury.

The Sheriff testified that he questioned Chance, Guttierez, and Posados in the presence of Blanco and the three admitted or confessed that the four of them robbed the Royal Theatre and when the confessions were made Blanco remained silent. The three were sent from the room, leaving the appellant alone with Sheriff Culbreath, when this colloquy occurred:

'Q. Sent them all out except Blanco? A. Yes, sir. Then he asked him about it. He denied it at that time; and I interrupted and said, 'Blanco, you know you are telling a lie;' that 'you asked a man for a match on the corner of the street just down from the theatre, and two boys that were with you were standing some six or eight feet away from you.' Then he turned to Bush and says, 'Yes, Chief, that is right; I was in this one job, but I didn't have anything to do with any other job.' Bush asked him about who was the gunmen, and he said that he, Chance and Guttierez. Bush asked him why did he take the money.'

Officer Bush heard the defendant's statement and that of the others jointly informed against, and his testimony is about the same as Sheriff Culbreath's. Detectives Beasley and Gordon Grant and Woody Thompson heard Blanco's incriminating statement, 'Well, that is the only one I am guilty of, the Royal Theatre.' The latter statement certainly is admissible when shown to have been voluntarily made. The appellant remained silent and failed to speak or deny the statements of guilt involving him made by others jointly indicted, and these statements were made in his presence, but it is asserted that this testimony constitutes reversible error. We can not agree to this contention. See Anthony v. State, 44 Fla. 1, 32 So. 818; 20 Am.Juris. Sec. 493. Those jointly informed against admitted the Royal Theatre robbery and additional crimes, which appellant while hearing them, remained silent and subsequently, in the absence of the others, denied the other crimes admitted to have been committed by those jointly informed against with him, but admitted being present when the Royal Theatre was robbed. We fail to find error in this assignment. See Banks v. State, 84 Ala. 430, 431, 4 So. 382.

Appellant poses for adjudication the question, viz.: Where in a prosecution for robbery there is not substantial evidence against the accused other than his own alleged confession, should a conviction be sustained?

It is contended that the evidence adduced is legally insufficient to sustain a judgment of conviction. The appellant admitted that he was in the Royal Theatre robbery, but no other. It cannot be disputed on the record that the Royal Theatre was robbed around 9:30 o'clock Sunday night, February 2, 1941. The appellant gave as his reason for the robbery that he needed money to meet a maturing note on his automobile. It was shown that the note was due at the time and the car was taken from him because of the defaulted payment. Mr. Dukes, an officer, and an acquaintance of many years of the appellant, identified him as an occupant of a car traveling at a high rate of speed from the theatre that had been robbed immediately after the same was alleged to have been robbed. We think these facts were for the jury appropriate instructions. See Broxson v. State, 99 Fla. 1187, 128 So. 628.

The next question is, viz.: Where a witness for the State on rebuttal has presumed to give identification testimony as to an accused person being near the scene of the offense, at or about the time the same was committed, should not the defendant be allowed to adduce evidence from competent witnesses as to the lack of opportunity on the part of any one to make any positive identification at the identical place in question and under conditions proved to be substantially similar as existed when the supported identification took place?

Officer Dukes was standing at the corner...