Driver v. State

• Decision Date: 02 June 1950
• Citation: 46 So.2d 718
• Parties: DRIVER v. STATE.
• Court: Florida Supreme Court

Page 718

46 So.2d 718

DRIVER v. STATE.

Supreme Court of Florida, Division B.

June 2, 1950.

Rehearing Denied June 26, 1950.

Amos Lewis, Marianna, James A. Mulkey, Geneva, Alabama, and E. C. Boswell, Geneva, Alabama, for appellant.

Richard W. Ervin, Attorney General and Reeves Bowen, Assistant Attorney General for appellee.

CHAPMAN, Justice.

Oscar Smith, Johnny Ray Smith and James Neal Driver were convicted by a jury in the Circuit Court of Bay County, Florida, of the crime of armed robbery. The trial court imposed a sentence of twenty-five years each in the State Prison of Florida at hard labor. The appeal here was taken only by James Neal Driver. Counsel for appellant contend that the judgment entered below is erroneous on several grounds or reasons, each of which will be hereinafter considered.

It is contended (a) that the evidence is legally insufficient to convict the defendants, or either of them, of armed robbery as charged in the information; and (b) the evidence adduced by the State of Florida as to the identification of James Neal Driver is legally insufficient to sustain the verdict and judgment of conviction as entered below.

It is not disputed that the Edgewater Gulf Beach Apartments, situated in Bay County, Florida, at an early hour on July 10, 1949, were entered by three armed men and a sum of money--less than $100--was unlawfully and forcibly taken from Don Hutchison and Herschel Joyner, employees at the time in the control and management of the Apartments. We observe disputes and sharp conflicts in the testimony on the point as to the identity of the three men who robbed the Apartments. An officer gave chase to the automobile leaving the Apartments immediately after the robbery and identified the driver of the fleeing car as one of the defendants convicted in the lower court and other men were in the speeding automobile.

One of the robbers had a pistol covered with a paper bag and another had a knife. Joyner was hit on the head by the robber having the pistol and the two employees, under cover of the pistol, were locked in a closet and threatened to be shot full of holes if they came out in five minutes. When in the closet they heard the robbers' car drive away. The appellant Driver got the money out of the cash drawer. One of the employees identified Driver because of his hair and peculiar eyes; he wore a green colored sport coat, grey trousers, and shoes; the witness was not sure about the hat he wore, if any. The two employees identified appellant Driver as the man taking the money from the cash drawer in the office of the Apartments while the other two robbers covered them with a Colts pistol and a knife.

Counsel for appellant contend that the testimony of the two employees was materially discredited when they attempted to identify appellant Driver at the court house at Geneva, Alabama, some three days thereafter. It appears from the evidence that some six men were each numbered and placed in a line--Driver being one of them--and the two employees were required to view the line and identify the man who robbed the Apartments in Bay County, Florida, some 80 or 90 miles away. It is argued that the identity of Driver by the two witnesses is so vague, indefinite and uncertain that this Court should, as a matter of law, set aside the verdict of the jury in the lower court.

As to the identity of the appellant Driver, it is pointed out, that at the exact hour of the robbery Driver was in company of a young lady in an automobile on a country road at a point between Geneva, Alabama, and the Kalamazoo Club situated near the Florida-Alabama line. The young lady and the appellant returned to her home at Geneva about 4:00 o'clock a. m., July 13, 1949. This alibi was supported by the testimony of two witnesses, Newsome and Johnson, who saw appellant in the car with the young lady at the time the robbery occurred in Bay County, Florida. One witness called by the State testified that the general reputation for truth and veracity of the two defense witnesses in and about the community of Geneva, Alabama was bad. The young lady with the appellant, it developed, was employed (or had been) in the capacity of a waitress at a hotel in Geneva owned by appellant's father. It was within the province of the jury to accept as true and base their verdict on the testimony of either the State's evidence or the appellant's evidence, as it was the jury's duty to decide the disputes and conflicts in the evidence. This Court, under our adjudication, is without power to substitute its judgment for that of the jury or to pit its conclusions as against the conclusions of the jury on the disputes and conflicts in the evidence.

It is next contended that the following instruction to the jury by the trial court was not only erroneous but was highly prejudicial and therefore a new trial must be awarded the appellant. The instruction is viz: 'The Court further charges you that the crime charged in this case does not depend upon the kind or value of the property taken; the gist of the offense being the felonious taking by the accused being at the time armed with a dangerous weapon, of money or property from the person or custody of another by violence or putting in fear. Nor is the crime graded by the value of the article taken, and hence proof of the amount in value of the articles taken is immaterial.'

It is fundamental that instructions should be confined to the law applicable to the controversy. Abstract instructions on questions of law not applicable should not be given by a trial court. We have held that the proper rule to be observed when determining the correctness of a charge is that the challenged instruction should be considered in connection with all other instructions bearing on the same subject and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated on the challenged instruction standing alone, must fail.

Our answer to the contention that the above quoted instruction as given to the jury by the trial court was erroneous and prejudicial is found in a careful study and analysis of another pertinent instructions on the point in issue as given by the trial court. It is not necessary for us to set out in this opinion other instructions on the point in controversy as given by the trial court. The judgment entered below comes on appeal to this Court with a presumption of correctness and the burden of showing error by law rests on the appellant. We have examined our holdings in Croft v. State, 117 Fla. 832, 158 So. 454; Finch v. State, 116 Fla. 437, 156 So. 489, and Richards v. Mayo, 108 Fla. 308, 146 So. 94, cited by counsel for appellant. The defective instructions as to the applicable law as given by the trial court in each of the cited cases did not appear in the...