Griffin v. State

• Decision Date: 01 November 1960
• Docket Number: No. C-156,C-156
• Citation: Griffin v. State, 124 So.2d 38 (Fla. App. 1960)
• Parties: Jesse B. GRIFFIN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 38

124 So.2d 38

Jesse B. GRIFFIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. C-156.

District Court of Appeal of Florida, First District.

Nov. 1, 1960.

Rehearing Denied Nov. 28, 1960.

Zach H. Douglas and Ralph Roberts, Jacksonville, for appellant.

Richard W. Ervin, Atty. Gen., and B. Clarke Nichols, Asst. Atty. Gen., for appellee.

STURGIS, Acting Chief Judge.

Four persons, incluidng the appellant, Jesse B. Griffin, Jr., were indicted upon a charge of murder in the first degree, resulting from the violent death of one Aughtry Hodges who was mortally wounded in the course of an armed robbery of a liquor store tended by him in Macclenny, Florida. Two of the defendants (Edward Celestine Tossetti and David Franklin Bryant) entered pleas of guilty and thereafter became witnesses on behalf of the state against their co-defendants (the appellant and one James Edward Padgett) who entered pleas of the guilty. Upon their trial the jury found them guilty of murder in the first degree with recommendation of mercy, and they were thereupon adjudged guilty as charged and sentenced according to law. From that judgment Griffin brings this appeal.

The proofs are such that conviction of appellant, who was not present at the commission of the crime, necessarily rests on his participation therein as contemplated by Section 776.011, Florida Statutes, 1959, F.S.A., whereby a principal in the first degree in the commission of a crime is defined, and depends also upon Section 782.04, Florida Statutes 1959, F.S.A., which, inter alia, defines murder in the first degree as the unlawful killing of a human when committed in the perpetration of or in the attempt to perpetrate the crime of robbery.

The pertinent facts governing the appeal are these: Tossetti and Bryant, testifying on behalf of the state, admitted their participation in the crime and implicated the remaining defendants. According to their testimony, which is essential to appellant's conviction, the deceased met his death in the course of an armed robbery that was perpetrated according to a prearranged plan entered into between these witnesses and their co-defendants. They also corroborated a state witness whose testimony tended to establish that Tossetti, Bryant and Padgett were present in the liquor store approximately one to one and one-half hours prior to the homicide. The testimony of Tossetti and Bryant, if believed by the jury as the verdict indicates, was ample to establish that the appellant, with prior knowledge of the intended robbery in connection with which the decedent was murdered, participated in the planning and strategy to be employed in the commission of the robbery, advanced funds to be used while reconnoitering the premises to be robbed, furnished the witnesses with a pistol to be used in the robbery, and generally aided and abetted in procuring the commission of the robbery.

Bryant and Tossetti, over appellant's objection, also gave testimony to the effect that witnin a period of sixty days prior to the homicide the appellant participated with them in the commission of several collateral crimes, larcenous in nature. With that predicate, persons claiming to be owners of the alleged stolen property were permitted to identify if as traced into the possession of the appellant.

At the request of appellant all witnesses were placed under the rule. After the defendants rested the state called as a rebuttal witness one Stella L. McFarland who gave testimony contradicting that of appellant to the effect that he and Tossetti were not in company with each other at appellant's home on the afternoon of the day on which the homicide took place. After her testimony was in, the court, upon motion of appellant, struck that testimony because, in violation of the rule, the witness was present in the courtroom during the presentation of testimony of other witnesses, and forthwith charged the jury to 'disregard and will give no consideration whatsoever in any shape, manner or form to the testimony of Mrs. Stella H. McFarland, who was called as a rebuttal witness by the State.'

Appellant's assignments of error present three points of law for disposition: (1) Whether it was incumbent on the court, upon discovering that the witness McFarland had violated the rule, and notwithstanding the favorable disposition of appellant's motion to strike the testimony of that witness and the subsequent charge to the jury in the premises, to forthwith of its own motion declare a mistrial. (2) Whether it was error to admit to the jury, over appellant's objections, testimony tending to establish that appellant and his co-defendants, Tossetti, Padgett and Bryant, had, within 60 days prior to the homicide for which appellant was on trial, confederated in the commission of collateral crimes, where it appears that the collateral crimes in question have in common with the crime being tried a general pattern or design on the part of the confederates to illegally appropriate to their own use the property of others. (3) Whether the evidence is insufficient to sustain the verdict.

It is well settled that the matter of excluding witnesses from the trial and the making of exceptions to the rule when invoked is within the sound discretion of the trial court. A witness who has violated the rule may, in the exercise of that discretion, be permitted to testify. Edwards v. State, 120 Fla. 693, 163 So. 25; Nelson v. State, 127 Fla. 677, 173 So. 841; Holder v. State, 136 Fla. 880, 187 So. 781. We are unable to perceive how the testimony of witness McFarland, upon the very narrow point about which she had knowledge, could have been aided or influenced by hearing the testimony of other witnesses, and...