Gamble v. State
Decision Date | 08 May 1968 |
Docket Number | No. 67--425,67--425 |
Citation | 210 So.2d 238 |
Parties | Jessie Lee GAMBLE, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, and Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
Appellant, defendant below, appeals a judgment and sentence of six months to five years imprisonment in state prison rendered pursuant to a jury verdict of guilty of breaking and entering a building other than a dwelling house with intent to commit a felony, to-wit: Grand Larceny.
A television store was broken into and five televisions and three or four radios were stolen. The televisions in question were rented by said store to various hospitals in the area; thusly, they were 'used' merchandise. At the trial, an invoice was introduced into evidence which recited that the 'original cost' of one of the televisions was $152.95. Eleven days following the theft, a search of defendant's apartment turned up one of the stolen television sets. After this set was found and while the defendant was a prisoner in the county jail, he was visited by a detective and was asked about the stolen television found in his apartment. The prisoner said that he got it from somebody and refused to say anything more.
At the trial the court gave the following instruction:
In this regard appellant contends that the above instruction violated both the Fifth and Fourteenth Amendments to the Constitution of the United States and that in the light of Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, such instruction is erroneous because a person is no longer under a legal duty to speak after being placed under police custodial interrogation. By this, if a defendant remains silent and does not explain his possession of stolen property by invoking his Fifth Amendment privilege, he cannot become subject to an inference of guilt at the trial.
Florida, in a long line of cases, has held that the privilege against self incrimination prohibits a defendant in a criminal case from being compelled to be a witness against himself, but that such did not prohibit a jury from considering as circumstantial evidence the possession of stolen property unexplained by a defendant who at a time prior to trial chose to remain silent. Tilly v. State, 1885, 21 Fla. 242; Bargesser v. State, 1928, 95 Fla. 401, 116 So. 11; Ferguson v. State, 1946, 157 Fla. 324, 25 So.2d 799; Ard v. State, Fla.1959, 108 So.2d 38; Cameron v. State, Fla.App.1959, 112 So.2d 864; Romanello v. State, Fla.App.1964, 160 So.2d 529 (...
To continue reading
Request your trial-
Palmer v. State
...567 (Fla.1968), that charging the jury on the inference of guilt is no longer constitutionally permissible. Accord, Gamble v. State, 210 So.2d 238 (Fla.App.2d, 1968), cert. dism. Fla., 225 So.2d 910 (Fla.1969); Urquhart v. State, 211 So.2d 79 (Fla.App.2d, 1968); Carpenter v. State, 213 So.2......
-
Turner v. State, 67-511
...the stolen goods were in his possession', proscribed by Miranda, and was therefore reversible error. This 2nd District Court in Gamble v. State, 210 So.2d 238, opinion released May 8, 1968, likewise reversed a conviction because of a similar instruction, although in that case the accused ha......
-
Urquhart v. State, 67--216
...in violation of the defendant's Fifth Amendment privilege under the Miranda decision.' We followed Young in Gamble v. State, Second District Court of Appeal, 210 So.2d 238, Opinion filed May 8, 1968, stating: 'The rule in this regard is that if the prisoner is alone and indicates in any man......
-
Spencer v. State
...proof of its market value at the time of the theft where as here the chattel was in used condition. Todd v. State, supra; Gamble v. State, Fla.App.1968, 210 So.2d 238. There are other factors present in this case in addition to the used condition of the wire which indicate that its new cost......