Dupree v. State

• Decision Date: 03 February 1967
• Docket Number: No. 7105,7105
• Parties: Leroy Willie DUPREE and Lawrence Eugene May, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1

195 So.2d 1

Leroy Willie DUPREE and Lawrence Eugene May, Appellants, v. STATE of Florida, Appellee.

No. 7105.

District Court of Appeal of Florida, Second District.

Feb. 3, 1967.

Rehearing Denied March 3, 1967.

William T. Fussell, Tampa, for appellants.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

PER CURIAM.

Defendant are appealing from a judgment finding them guilty of robbery. On the night of April 24, 1965, two men came into one of the 7--Eleven Food Stores in Tampa, announced a 'holdup,' took approximately $160.00 from the assistant manager, and fled into an open field across from the store. The assistant manager could not positively identify either man, since each man's face was covered up with a handkerchief-type mask.

Defendants and one William Arthur Sprung were arrested and charged with the robbery. All three entered pleas of not guilty, but later Sprung changed his to guilty. At the trial Sprung testified for the State. He stated that he, his wife, Betty, and the defendants all drove over to the 7--Eleven Store in May's car and that he and May got out of the car and robbed the store. Sprung's wife, Betty, also testified for the State and corroborated her husband's testimony.

The first issue presented in this appeal concerns the admissibility of the testimony of Sprung. Under Florida law the uncorroborated testimony of an accomplice is sufficient to support a conviction if it satisfies the jury of the defendant's guilt beyond a reasonable doubt. Jalbert v. State, Fla.1957, 95 So.2d 589; Cash v. Culver, 1959, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557; Land v. State, Fla.1952, 59 So.2d 370; and Varnum v. State, 1939, 137 Fla. 438, 188 So. 346.

Defendants have cited the case of Brock v. State, 1934, 114 Fla. 309, 153 So. 900, which held that the uncorroborated testimony of an accomplice standing alone would not be sufficient to sustain a conviction. The facts of this case are that Clark, who was guilty of other violations of the law, implicated Brock in a robbery. The persons robbed failed to identify Brock and in fact one of the victims positively identified a deputy sheriff as the man who robbed him. At the trial Brock called Tom Davis and Mrs. Brock, who both testified that Brock was out of town and with them when the robbery occurred. These facts can be distinguished from the facts in this appeal. The defendants here offered no alibi concerning their whereabouts when the robbery took place. Brock had an alibi and two witnesses to corroborate it. The person robbed in this appeal could not identify the defendants or anyone else as the robbers. In the Brock case the one victim identified another person as the man who robbed him and the other victim thought it was the same man also but did not make a positive identification.

From the above comparison of facts, it can be seen that the Brock case cannot be used as a precedent in this present appeal. Therefore, the testimony of the accomplice, Sprung, was admissible at the defendants' trial.

The second issue raised in this appeal concerns the correctness of the instructions to the jury. The defendants object to the following portion of the instructions:

'* * * While the testimony of an accomplice will sustain a verdict of guilty, even if uncorroborated, yet the testimony of an accomplice must be received with great caution. * * *'...