Brown v. State
| Decision Date | 01 July 1937 |
| Parties | BROWN et al. v. STATE. |
| Court | Florida Supreme Court |
En Banc.
Error to Criminal Court of Record, Polk County; R. T. Dewell Judge.
C. A Brown, Jr., and others were convicted of kidnapping, and they bring error.
Reversed and new trial awarded.
Pat Whitaker, Charles F. Blake, Tom Whitaker, and D. B. Whitaker, Jr., all of Tampa, Luther Johnson and E. A. Bosarge, both of Bartow, L. E. Womack, of Tampa, and C. A. Boyer, of Orlando, for plaintiffs in error.
Cary D. Landis, Atty. Gen., Roy Campbell and John L. Graham, Asst. Attys. Gen., and J. Rex Farrior, State Atty., of Tampa, for the State.
The plaintiffs in error were tried in Polk county on a change of venue from Hillsborough county on an information filed in the criminal court of Hillsborough county charging the defendants therein named with conspiracy to violate, and with the violation of, section 7159, C.G.L., section 5057 R.G.S relating to the false imprisonment of kidnapping of one Eugene F. Poulnot. The first two counts charged conspiracy to kidnap. The last two counts charged the substantive offense of kidnapping. The five plaintiffs in error were found guilty and sentenced under the fourth count charging the substantive offense after a severance had been granted as to some of the originally named defendants.
The trial was perhaps the longest ever held in the State of Florida, 5 1/2 weeks being consumed in the taking of testimony for the prosecution alone. It is safe to say that fully two-thirds of the record thus made consists of evidence bearing on, and only admissible under, the conspiracy charges, and that had the trial been confined to the issue made by the fourth count (which is the only count upon which the plaintiffs in error were convicted) that the taking of all germane evidence could adequately have been wound up in a week. In this connection it is well to observe in the premises that for some unexplained reason not apparent of record, the distinguished counsel for both sides seem to have lost sight of the fact that the defendants were individuals being tried for a serious felony, and not the two contending political factions of the city of Tampa whose supposed crimes and alleged acts of corruption seem to have obscured all intelligent analysis and weighing of the only evidence that bore on the particular defendants' guilt or innocence under the fourth count of the information under which the defendants were finally found guilty. Even the justices of this court have found it difficult, trained in mind as they are in the reading, ascertainment, and appraisement of disputed facts in a case brought here on appeal, to separate in their judicial minds the evidence applicable to the guilt or innocence of the defendants under the fourth count charging the kidnapping itself as a substantive felony, from that tendered and introduced bearing on the conspiracy charge which the court below, by directing a verdict for defendants on that charge, in contemplation of law found had never been substantiated by legal proof sufficient to go to a jury, to be considered at all for any purpose.
In this case the State charged a conspiracy to kidnap as well as the substantive offense of kidnapping. So the State by its own choice of a method of procedure under an information so framed, elected to separate and deal with its conspiracy allegations and its substantive offense allegations in such manner that the defendants could be convicted under either or both of them, in so far as the information was concerned.
The State, therefore, by electing to put the defendants on trial and hence in jeopardy, on the conspiracy charge as a separate offense culminating in the accomplishment of the substantive offense charged, deliberately chose of procedure which, in this case, altered the normal application of the usual rule that upon the trial of an indictment for a substantive offense, evidence is admissible to prove a conspiracy to commit the substantive crime charged in the indictment (although no conspiracy is charged...
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