Cullaro v. State

• Decision Date: 18 September 1957
• Docket Number: No. 7,7
• Citation: 97 So.2d 40
• Parties: Olga CULLARO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 40

97 So.2d 40

Olga CULLARO, Appellant, v. STATE of Florida, Appellee.

No. 7.

District Court of Appeal of Florida, Second District.

Sept. 18, 1957.

Carl G. Swanson, Jacksonville, for appellant.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

KANNER, Chief Judge.

This is an appeal from the judgment of the Criminal Court of Record, Hillsborough County, wherein appellant was found guilty of murder in the second degree for the fatal shooting of her husband.

Appellant bases her appeal upon five points which probe the questions for reversible error on the part of the lower court with reference to the admissibility of her confession, and of a photograph of the deceased, and of denial by the court of requested instructions relating to the defenses of self-defense and accident.

The first point questions the propriety of the court's ruling admitting into evidence confession of the appellant, contending that it was made at a time when she was 'hysterical' and 'not normal'. Testimony reveals that there was some crying, wringing of hands, nervousness, and excitement exhibited by appellant at the hospital when the decedent died, but that about an hour to an hour and fifteen minutes later when she made her confession, she exhibited ony a slight display of nervousness such as she later evidenced in the courtroom during the course of the trial, as demonstrated by the following questions and answers, Tr. 33:

'By the Court:

'Q. Was she acting like she is now? A. Something similar, yes, sir.

'By Mr. Fisher:

'Q. Would you say that Mrs. Cullaro was merely normal at the time you questioned her? A. Other than being slightly nervous, she was. She wasn't--I couldn't say that she was any more nervous than she is at the present time.'

Proof does not evidence such a condition of hysteria as to show that appellant was in such a state of mind as to be bereft of her powers of comprehension at the time she made her confession, but rather the condition described obviously stemmed from the natural emotional reaction which came with distressful realization of the irrevocable result of her deed. The evidence as to the confession was offered through police officers and established that appellant was possessed of her faculties so that she understood the nature and effect of her statements.

A confession should not be rejected because it was made under excitement or mental distress or disturbance not induced by extraneous pressure exerted to compel a confession, but which arose from the confessor's own apprehensions due to the situation in which he found himself. See 20 Am.Jur., section 523, p. 448. It is stated in the same section, 'The rule generally prevailing is that the admissibility or voluntary character of a confession is not affected by the fact that the accused was not in full possession of his faculties at the time his confession was made, although such circumstance is to be taken into consideration by the jury in weighing the evidence.'

The trial court exercised prudence and caution in determining the admissibility of the confession. He required a preliminary investigation in the absence of the jury; he further required that proper predicate be laid, that the confession was freely and voluntarily made, uninfluenced by any threat, promise, fear, hope, or other illegal inducements. See Nickels v. State, 90 Fla. 659, 106 So. 479; and Morris v. State, 100 Fla. 850, 130 So. 582.

The next two questions posed by appellant as bases for this appeal inquire (2) whether it was proper for the court to have admitted into evidence a gory photograph of the deceased taken in the morgue after the body had been altered and proved no fact not...