Hall v. State, 70--883

• Decision Date: 25 May 1971
• Docket Number: No. 70--883,70--883
• Parties: Clifford HALL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 524

248 So.2d 524

Clifford HALL, Appellant, v. The STATE of Florida, Appellee.

No. 70--883.

District Court of Appeal of Florida, Third District.

May 25, 1971.

Pollack, Yocom & Fath, Miami, and Alvin Enten, for appellant.

Robert L. Shevin, Atty. Gen., Barry Scott Richard, Asst. Atty. Gen., and Arnold R. Ginsberg, Legal Intern, for appellee.

Before BARKDULL, HENDRY and SWANN, JJ.

PER CURIAM.

Appellant-defendant Hall seeks review of a judgment of conviction entered in a non-jury trial for breaking and entering and attempted grand larceny for which sentences totalling five years were imposed.

The sole point on appeal is the sufficiency of the circumstantial evidence presented to support the conviction.

The rule to be applied is not controverted, and is considered well-settled. The Florida Supreme Court in Davis v. State, Fla.1956, 90 So.2d 629, 631, stated the rule as follows:

'* * * one accused of a crime is presumed innocent until proved guilty beyond and to the exclusion of a reasonable doubt. It is the responsibility of the State to carry this burden. When the State relies upon purely circumstantial evidence to convict an accused, we have always required that such evidence must not only be consistent with the defendant's guilt but it must also be inconsistent with any reasonable hypothesis of innocence. (Citations omitted.)

'Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence. * * *'

On November 4, 1970, about 9:00 P.M., the fence and door of the Drake Electric Company was forcibly broken. The Drake premises, containing property worth in excess of $100.00, was protected by a silent burglar alarm which was activated at that time.

Miami Police Officer Reynolds arrived at the premises at about 9:08 P.M. on hearing a police radio call. He observed two Negro males coming through the fence on top of the wall. This was in a lighted area. He shouted for them to halt, but they ran. He observed boxes piled up near the hole in the fence. At trial, Officer Reynolds testified that he actually apprehended and arrested one of the suspects (not the appellant) who he described by build and clothing. He was able to describe the other man emerging from the hole in the fence as a Negro male of stocky build, about 5 6 --5 7 tall and weighing more than two...