Cortes v. State

• Decision Date: 16 December 1938
• Citation: 135 Fla. 589,185 So. 323
• Parties: CORTES v. STATE.
• Court: Florida Supreme Court

185 So. 323

135 Fla. 589

CORTES v. STATE.

Florida Supreme Court, Division A.

December 16, 1938

Error to Criminal Court of Record, Hillsborough County; John R Himes, Judge.

Jack Cortes was charged with receiving stolen property. To review the judgment rendered, he brings error.

Judgment affirmed.

COUNSEL

Chester H. Ferguson, of Tampa, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for the State.

OPINION

PER CURIAM.

The first two questions presented by defendant Cortes in his brief read as follows:

'Question No. 1. The information was filed by the Solicitor against the defendant October 21, 1937. To said information on December 29, 1937, the defendant filed his plea in abatement, therein averring that said information was void and ineffectual, in that, the said County Solicitor, before he filed said information, did not at any time have any witnesses before him under process of the court; that no person whomsoever testified to any facts which, if true would constitute the offense in said information alleged. On December 30, 1937, said Solicitor filed an unsworn motion requesting leave of the court to reswear to and refile said information. An order to such effect on the following day was entered, and on said date the information was resworn to and refiled by the Solicitor. Whereupon, on the 19th day of January, 1938, the defendant, through counsel, requested leave of court to withdraw defendant's plea of not guilty and to interpose said plea in abatement to said information as resworn to and refiled. This the court denied. Was such ruling of the court error?'

'Question No. 2. Where the Constitution and laws of Florida require as a prerequisite to a valid charge, as well as a prerequisite to the jurisdiction of the court to prosecute and impose any valid judgment against persons charged with violation of criminal law, that an investigation must be made into the facts concerning said alleged offense by the County Solicitor before or at the time of making the affidavit and filing the information, and he is required to make an oath to an affidavit which forms a part of said information, reciting that facts have been sworn to as true concerning said offense, and which, if true, would constitute the offense therein charged; and where it is made to appear that in fact the County Solicitor made no such investigation at all and had no facts before him concerning said alleged offense prior to or at the time he made said affidavit, and said affidavit is false and untrue, does the court have jurisdiction to proceed with said prosecution or impose a judgment in said cause?'

The original information filed by the County Solicitor in this case was based solely upon testimony taken at a preliminary hearing before the County Judge. In Anderson v. State, Fla., 183 So. 735, decided at this term, the information filed by the County Solicitor was based on testimony taken before a Justice of the Peace. The defendant contended the information was void ab initio, but this Court held the constitutional provisions and statutes controlling the subject did not require that the information filed by a Solicitor of the Criminal Court of Record shall be based solely and exclusively upon the testimony taken before him. Under this ruling the contention of the defendant is not well founded.

The third question raised by defendant reads as follows:

'Question No. 3. The defendant filed simultaneously with and subject to his plea in abatement his plea in bar, which set up that the defendant was granted immunity from prosecution for the crime in the information charged, in consideration of the defendant's giving testimony in the trial of a case involving the principal offense of armed robbery out of which the charge of receiving stolen property lodged against the defendant arose, when it appeared from the allegations of said plea that the defendant was charged as one of the principal offenders in the county in which the principal offense was committed and that immunity was granted him upon and after an agreement had been entered into by the State's Attorney of that county and had been duly approved and confirmed by the order of the Circuit Court trying said principal offense. A demurrer to said plea was interposed by the State and same sustained. Did the court err in sustaining said demurrer?'

The right to immunity from prosecution is equitable merely, based on the pledged faith of the public, and does not entitle the accomplice to plead the promise of immunity as a bar. He is not entitled to discharge as a matter of right, but must abide by the sound discretion of the Court and prosecuting attorney. 16 C.J., Criminal Law, Sec. 65, p. 94; Newton v. State, 15 Fla. 610; Ingram v. Prescott, 111 Fla. 320, 149 So. 369; Notes in 40 Am.St.Rep. 767, 774 and 24 L.R.A.,N.S., 439, 440.

We are of the opinion that a contract of immunity, even though approved by the Court, and even if given the construction contended for by counsel which we do not do, is not a good plea in bar, but only affects the right to enforce or impose sentence as punishment. In holding that there was no error in the lower Court's ruling on the demurrer to the plea in bar, we have found it unnecessary to consider the question of whether the Circuit Court of Osceola County had jurisdiction to grant defendant immunity from prosecution for a case that was then pending in Hillsborough County, nor are we placing any construction on the agreement entered into by defendant and the prosecuting attorney in Osceola County.

In his fourth and fifth questions defendant contends that in view of the insufficiency of the proof of the corpus delicti the Court erred in allowing evidence to be admitted concerning the admissions of the defendant which tended to prove the commission of the crime.

R. G. Whittle testified that he was a driver for the St. Johns River Line, and that on or about the 25th day of June, 1936, while driving his truck between Campbell's Station and Kissimmee he was held up and robbed, and 123 cases of cigarettes were taken from him. That these cigarettes were worth approximately $55 per case. That he knew these cigarettes because he loaded them all on the truck, and that thereafter he saw two cases of the cigarettes that had been taken from him. That he knew them by the truck line stamped on them. That the cigarettes that were taken from him were being transported by his company for trade, and that they really belonged to Eli Witt or other customers.

The next witness was A. L. Quinn, who testified that he saw the defendant put two cases of cigarettes into his car on June 30, 1936. That defendant covered them up in the car and got in, and that he, Quinn, and another officer named Wallis chased him for about two miles and arrested him, and they found two cases of cigarettes in the car. That the defendant offered to pay them money to let him go.

The next witness, George L. Wallis, testified that he was with the officer Quinn and saw the defendant go in the house, get the cigarettes, come back out and put them in his car. That they chased him for about two miles and arrested him. That the defendant offered them money to let him go. That the defendant told them that the balance of the cigarettes were at the defendant's house.

A. C. Logan, Deputy Sheriff, testified that the defendant offered to bribe him to let him go. That the defendant also offered money to let him and Johnny Martin go. C.J. Woodruff, Chief of Police of the City of Tampa, testified that the defendant tried to bribe him to let him go.

That the property was stolen is proven by R. G. Whittle. The defendant was subsequent to the robbery found in possession of two cases of the cigarettes, and this leaves for consideration the only question of whether the fact that defendant knew the property was stolen was established prima facie by proper proof. It is sufficient if this proof is introduced after the admissions, and if it justifies the admission of such evidence, the technical error in prematurely admitting such evidence will be cured. Smith v. State, 93 Fla. 238, 112 So. 70.

The State proved that the defendant fled when he was discovered with the cigarettes. Deputy Sheriff Wallis testified that they followed defendant several miles; that he was driving about 50 or 55 miles an hour; and that defendant looked back at the Sheriff's car every time he turned a corner. This evidence was sufficient to prima facie show that defendant knew the property was stolen.

The defendant then contends that because the evidence shows that the cigarettes actually belonged to persons other than the St. Johns River Lines, as alleged in the information, there is a fatal variance between the allegata and probata. The record shows that the St. Johns River Lines was transporting the property for other persons and that it was in lawful custody of the property and entitled to its possession. Therefore, there is no merit in this contention. Shiver v. State, 103 Fla. 871, 138 So. 502; Mathews v. State, 85 Fla. 194, 95 So. 609; Parker v. State, 75 Fla. 741, 78 So. 980, 2 A.L.R. 350.

The next question presented by defendant in his brief reads as follows:

'Question No. 7. Where it appears from the testimony that certain admissions and confessions were procured from the defendant by unlawful means, namely, under fear or duress and punishment, and upon objection of the defendant these statements were excluded by the court, but upon timely objection thereafter made the court allowed subsequent admissions or left-handed confessions in the form of alleged attempts to bribe allegedly made by the defendant to be admitted in...