Farnell v. State, 67--91

Decision Date25 September 1968
Docket NumberNo. 67--91,67--91
Citation214 So.2d 753
PartiesJ. Crockett FARNELL, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Harry M. Hobbs, and Sam Bucklew, Tampa, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

Appellant J. Crockett Farnell appeals to this Court a judgment of conviction entered against him in a criminal case.

On July 14, 1966, information was filed in the Hillsborough County Criminal Court of Record charging Farnell and one James A. (or Jimmie) Johnson jointly in two counts. The first count charged that, from January 1, 1958, to July 14, 1966, 1 Farnell, as School Superintendent of Hillsborough County, and Johnson, as supervisor for the local School Board, embezzled school board property, such as building materials, lumber, paint, etc.; and in furtherance thereof Farnell procured Johnson to deliver said articles through school employees to premises known as 'Camp Oconee' in Hillsborough County, wherein Farnell had an interest; and also procured Johnson to direct school employees 'to perform work, labor and services' at the camp on school time. The second count followed the first count except that it charged grand larceny instead of embezzlement.

Farnell filed motion to quash upon the main ground that the performance of 'work, labor and services' was not 'personal property' that could be embezzled or stolen. The trial Judge upheld this contention and quashed both counts, holding that such 'allegations * * * (were) not the subject of either Embezzlement or Larceny'.

On October 3, 1966, the State Attorney filed amended information against the defendants, charging them in one count with embezzlement under F.S. § 812.10, F.S.A., 2 in substantially the same language as the original first count. Motion to quash was denied. A bill of particulars by the State specified that the offense consisted of 'a periodic series of * * * conversions' from January 1, 1958 to October 3, 1966.

Trial of the case began on December 13, 1966, against Farnell alone, and ten days later the jury returned its verdict of guilt. Johnson did not testify or otherwise appear, and his absence is not explained by the record. During the trial 16 witnesses testified for the State, 11 for the defense. Testimony and trial proceedings were voluminous, comprising over 2000 pages in 11 volumes of the record. 72 exhibits, some quite bulky, were filed.

The evidence covered a wide scope in time, in places, in personnel involved, and in the nature of the transactions depicted. Admittedly, it painted a sordid picture of school administration and disclosed a reprehensible system of petty pilfering in school supplies, never on a large scale, but over a period of some 10 years. It seemingly was the Modus operandi around the local school warehouses, limited only by the law of supply and demand. Charitably it could be termed unsavory; from a standpoint of civic conscience it could only be labelled opprobrious. Whatever was going on or whoever was responsible, it was morally and legally wrong.

Numerous subordinate school employees, such as truck drivers, carpenters and maintenance men, gave testimony to the abstractions. The 'stuff' was usually hauled away from the depositories or warehouses on school-owned busses or trucks by school employees. While most was diverted to Camp Oconee, not all of it went there. Some of it was taken to an abandoned, rundown farm house near Odessa, Florida. Also, as might be expected, a sizeable portion found its way into the private possession of the workers themselves, all of whom had been previously given immunity by the prosecution.

And the evidence was not limited to school materials. It embraced the use of school facilities for remodelling of articles such as furniture, lawn mowers, gates and fences; also occasions when school property such as busses and trucks would be used for private purposes, always being first replenished with gasoline taken from the school pumps. One such expedition was the use of a school bus in the transfer of horse feed from Lake City to Camp Oconee. The evidence also covered innumerable instances of non-school Work done by school employees.

The wraith-like figure of Jimmie Johnson pervaded the atmosphere of the trial from beginning to end, and while named as a co-defendant he was never actually in the courtroom, either in the witness chair or in the prisoner's dock. But according to the workers it was Johnson who was the human catalyst in the entire enterprise. He alone gave the orders and his subordinate workers meekly followed his instructions, admitting they knew it was wrong when they did it. 3

There was no testimony that Farnell ever ordered or instigated the materials to be furnished or the work performed, or that the orders came from Farnell through Johnson, or that Farnell was ever present when the orders were given. The trial Court ruled that the evidence of Johnson's instructions to the workers was admissible upon the theory that a conspiracy existed between Farnell and Johnson.

All of which points up the critical situation confronting us in three areas of the evidence: (1) whether there was sufficient independent proof of a conspiracy between Farnell and Johnson as to make admissible the hearsay statements of Johnson; (2) whether evidence of offenses similar to those specified in the amended information was admissible; and (3) whether the evidence as to Work done by the school employees was properly admitted. We are impelled to the view that the judgment of conviction must be reversed upon each of the three points mentioned. We will discuss these propositions separately.

(1) Proof of Conspiracy.

Farnell had first been elected Hillsborough County School Superintendent in 1948, taking office in January, 1949, and continuing in such capacity until the instant prosecution. One James A. Greco had been a member of the old Board of Trustees of the Hillsborough County school system from his election in 1949 until the end of 1958, when it was abolished by referendum, and thereafter all school authority was centered in the Board of Public Instruction. The original Board of Trustees, among other duties, had supervision of all school buildings, of repairing, refurnishing and improving them, and also responsibility for recommending employment of all teachers and janitors in the county school system.

In June of 1956, James Investment Company was organized as a Florida corporation, with five share holders putting up $8,000 apiece for 22 shares each of the capital stock. In July, 1957, Greco and Farnell, two of the original five organizers, bought out their associates, each retaining his 22 individual shares and retiring the purchased shares as treasury stock. Greco became president and treasurer of the corporation, Farnell vice president, and Mrs. Greco secretary, this arrangement continuing down through the years.

About the time the corporation was organized, it acquired by purchase an 80 acre tract in the northwest area of Hillsborough County, 25 acres being in citrus grove, and having frontage on three lakes. The improvements on the property consisted of a 2-story house, a caretaker's house, a large barn, and also a building known as the bunkhouse.

The property was operated during the summer months of 1957 and '58 as a day camp for children by a Mrs. Callahan, under name of Camp Whipporwill. In 1959, 1960 and 1961 it was operated by one Stalnaker, who changed its name to Camp Oconee. During 1962 and 1963 it was operated by a Mrs. Williams. In 1964 and 1965, the camp was operated by three people, Baker, Kreher and Walker. During all these years, when the camp premises were available it would be utilized by religious, social, and fraternal organizations, schools, churches and industrial groups for outings, meetings, camping, picnics, fishathons, etc., usually without charge.

The foregoing is a brief background setting for the case. We now proceed to consideration of the more immediate aspects.

As before stated, there was evidence at the trial that workers in the school system took school supplies to Camp Oconee and the Odessa remises, 4 that they did work there, 5 and on occasions repaired or repainted at the school maintenance warehouses articles belonging to the two places. 5

The State contends that this raft of hearsay testimony was admissible against Farnell under the 'co-conspirator exception to the hearsay rule'. It is the law that '(e)very act and declaration of each member of a conspiracy * * * is * * * the act and declaration of them all, and is therefore original evidence against each of them'. Mercer v. State, 1898, 40 Fla. 216, 24 So. 154; Roberson v. State, 1898, 40 Fla. 509, 24 So. 474.

But it is also the law that, before the 'co-conspirator rule' may be invoked there must first be 'independent evidence of the existence of a conspiracy, and of the objecting party's participation in it'. Duke v. State, 1938, 132 Fla. 865, 134 Fla. 456, 185 So. 422; Rogers v. United States (CA5 1964) 334 F.2d 83, cert. den. 380 U.S. 915, 85 S.Ct. 892, 13 L.Ed.2d 800; Carbo v. United States (CA9 1963) 314 F.2d 718. In other words, Proof of a conspiracy is necessary '* * * for the purpose of establishing the * * * criminal liability of the conspirators for the unlawful acts of their co-conspirators in furtherance of the common purpose'. 6 Fla.Jur. § 17, p. 249.

In Brown v. State, 1937, 128 Fla. 762, 175 So. 515, the Supreme Court reiterated 'the usual rule that upon the trial of an indictment for a substantive offense, evidence is admissible to prove a conspiracy to commit the substantive crime charged in the indictment (although no conspiracy is charged in such indictment) on the theory that the principal crime charged may itself be established By first proving the formation and execution of a...

To continue reading

Request your trial
18 cases
  • Anthony v. State, 70--457
    • United States
    • Florida District Court of Appeals
    • April 7, 1971
    ...154 So.2d 327; Sciortino v. State, Fla.App.1959, 115 So.2d 93; Wilson v. State, Fla.App.1965, 171 So.2d 903; Farnell v. State, Fla.App.1968, 214 So.2d 753; Sikes v. State, case No. 69--299, opinion filed March 10, 1971, but not yet published, and Christie v. State, Fla.App., 246 So.2d 605, ......
  • Robertson v. State
    • United States
    • Florida District Court of Appeals
    • March 28, 2001
    ...v. State, 62 So.2d 71 (Fla. 1952) (collateral crime committed three or four years before crime charged was too remote); Farnell v. State, 214 So.2d 753 (Fla. 2d DCA 1968) (collateral crimes committed eleven and twelve years earlier were too remote). But see State v. Statewright, 300 So.2d 6......
  • Resnick v. State
    • United States
    • Florida Supreme Court
    • November 7, 1973
    ...889 (Fla.1971); Mercer v. State, 40 Fla. 216, 24 So. 154 (1898); Roberson v. State, 40 Fla. 509, 24 So. 474 (1898); Farnell v. State, 214 So.2d 753 (Fla.App.2d 1968).2 Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Glasser v. United States, 315 U.S. 60, 62 S.C......
  • Tresvant v. State, 78-2002
    • United States
    • Florida District Court of Appeals
    • March 13, 1981
    ...720 (Fla.1974); Nichols v. State, 390 So.2d 1238 (Fla. 2d DCA 1980); Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980); Farnell v. State, 214 So.2d 753 (Fla. 2d DCA 1968); United States v. Spencer, 415 F.2d 1301 (7th Cir. 1969); United States v. Rinaldi, 393 F.2d 97 (2d Cir. 1968); United Sta......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT