Chippas v. State, 35059

• Citation: 194 So.2d 593
• Decision Date: 25 January 1967
• Docket Number: No. 35059,35059
• Parties: Louis Harry CHIPPAS, Petitioner, v. The STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

Page 593

194 So.2d 593

Louis Harry CHIPPAS, Petitioner, v. The STATE of Florida, Respondent.

No. 35059.

Supreme Court of Florida.

Jan. 25, 1967.

Rehearing Denied Feb. 27, 1967.

Harry Prebish and Nicholas F. Tsamoutales, and Aram P. Goshgarian and Richard M. Gale, Miami, for petitioner.

Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for respondent.

PER CURIAM.

Petitioner here asserts that the decision of the District Court of the Third District in this case, 180 So.2d 355, is in irreconcilable conflict with the decision of this Court in Benefield v. State, 160 So.2d 706, and the decision of the District Court of Appeal, Second District, in Watson v. State, 134 So.2d 805.

We find nothing in the decision below that conflicts with the decision in Benefield. The following language, however, in the case sub judice, viz:

'During the trial, an accomplice, Stubs, testified, over objection, as to two other robberies in which he and the defendant were alleged to have participated. In cross-examination, defense counsel attempted to present to the jury the fact that the defendant had been acquitted for the robbery of one of the other places mentioned. The State's objection was sustained and Stubs was not permitted to testify as to the acquittal of the appellant.

'The ruling of the trial court was correct inasmuch as the record of a former acquittal was the proper method to establish this fact and not by cross-examination of the accomplice. The record of the court showing acquittal of the appellant would have been the best evidence, and the trial court was correct in its ruling.'

is hereby approved as the correct decision. The decision in Watson insofar as it conflicts with the above quoted language is hereby overruled.

On the merits the decision of the District Court of Appeal is hereby affirmed.

ROBERTS, DREW, O'CONNELL, CALDWELL and ERVIN, JJ., concur.

THOMAS, J., dissents with opinion.

THORNAL, C.J., dissents and agrees with THOMAS, J.

THOMAS, Justice (dissenting):

With all respect to my colleagues I must dissent from the opinion in this case which, I believe, results in injustice to the petitioner.

The petitioner, Louis Harry Chippas, was tried on an information charging him with grand larceny and with breaking and entering with intent to commit that offense, both alleged to have been committed in Florida. A jury found him guilty of both charges and the judgment was affirmed by the District Court of Appeal. He now seeks review by this court on the theory that the decision conflicts with the one of this court in Benefield v. State, 160 So.2d 706.

Before going immediately to the point involved, we give a brief statement of the factual background of petitioner's brush with the law from the viewpoint of the State. While he was actually seated in a stolen automobile parked in front of the courthouse in Butler, Choctaw County, Alabama, and his companion was in the probate office undertaking to procure a duplicate tag receipt for a license plate, the sheriff spied the petitioner and ordered a deputy to bring him to the sheriff's office. According to the evidence subsequently developed, the petitioner knew the car had been stolen and that his companion was a fugitive, therefore needed an alias, further that the car was registered in the companion's assumed name, though petitioner had been driving it. While both men were being detained 'for investigation' the car was searched and in petitioner's suitcase were found a gun, a number of blank drivers' licenses and an Alabama license plate. At this point the petitioner was charged with carrying a concealed weapon. But 105 days expired between the incident just related and petitioner's knowledge of the offense for which he was eventually to be prosecuted.

I think an accurate picture of the whole affair can best be obtained from the record of the testimony of the sheriff.

He first saw the petitioner sitting in a Buick automobile. He had detained for questioning the man who was in the probate office getting the duplicate tag receipt. When the sheriff returned to his office he was told 'by some of the boys' that 'another one was sitting in the car.' Thereupon he went to the door, took a look, and sent the deputy to fetch the occupant of the car who, it developed, was Chippas.

We observed a conflict between the decision of the District Court of Appeal in the instant case and the decision of the Supreme Court in Benefield v. State, supra, and concluded to entertain the case pursuant to Section 4(2), Article V, of the Constitution, F.S.A. We said there that the validity of an arrest without a warrant must be based upon probable cause which would obtain when the 'circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.'

I find no such circumstances to have been established here at the time the sheriff sent for Chippas, without jumping to the conclusion that because a person was undertaking to get a duplicate tag receipt, apparently in suspicious circumstances, and another person occupied an automobile in front of the courthouse the two were engaged in unlawful traffic in stolen cars. The record does not indicate to me that at the time of detention there was probable cause to believe that the petitioner was committing a crime. I cannot believe that had the sheriff applied for a search warrant under the facts known to him at the time of the detention he would have been successful. I use the word 'detention' purposely to avoid the expression 'arrest for investigation' which is not to me...