Hand v. State, G--300

• Decision Date: 30 June 1966
• Docket Number: No. G--300,G--300
• Citation: 188 So.2d 364
• Parties: Bobby Ray HAND, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 364

188 So.2d 364

Bobby Ray HAND, Appellant, v. The STATE of Florida, Appellee.

No. G--300.

District Court of Appeal of Florida, First District.

June 30, 1966.

Rehearing Denied Aug. 3, 1966.

T. Edward Austin, Jr., Public Defender, and Louis O. Frost, Jr., Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee.

CARROLL, DONALD K., Judge.

The appellant was charged with and convicted of the crime of robbery by the Criminal Court of Record of Duval County, and has appealed from the judgment of conviction entered by that court, based upon a guilty verdict returned by the jury at his trial.

The question presented for our determination in this appeal is whether the trial court committed reversible error in: denying the appellant's oral request for a jury instruction on the lesser included offense of larceny; admitting testimony concerning the convict clothing which the appellant was wearing when the crime was committed; or asking the appellant's counsel at the conclusion of the trial and in the presence of the jury, 'Does the defense have any testimony?'

Briefly stated, the evidence at the trial established the following facts: On the morning of August 14, 1964, the appellant and several other prisoners, all wearing convict uniforms, escaped from a Clay County prison camp, and afterwards entered the trailer home of one Delbert Irons, whose automobile and trailer were parked in Duval County. By force of arms the convicts removed from the trailer a .22 pistol, a transistor radio, and some clothing. The appellant then drove away from the trailer home in Irons' automobile. On the evening of the next day the appellant and another convict were seen by a Duval County patrolman. The appellant tried to escape from the officer, but shortly afterwards was discovered and arrested while lying face down over a pistol which was identified by Irons as the weapon taken from his trailer home.

Irons' trial testimony was uncontradicted that on the date in question he was sitting in his trailer home with his wife and their two children, one six months old and the other one and a half years old, when six men, including the appellant, entered Irons' trailer home. The men, who were dressed mostly in prison clothes, ordered Irons to go to his bedroom and sit on the bed, and asked him for some clothes so they could change into them. They also found and took Irons' pistol and transistor radio. The children were placed on the bed with their parents and then the men 'tied us up with bed sheets.' During these events the appellant held in his hand a 'big' shotgun which looked to Irons 'like any other prison chaser shotgun.' The men asked Irons for the keys to his car and he replied that they 'must be in the car.' Irons also testified that the value of his transistor radio was $16, his pistol.$39.95, his car $2,775, and his shirt, which was taken by the appellant, $3. Irons did not surrender these articles voluntarily, but he let the men have them 'for fear my wife and kids or myself might come to harm.'

The crime of robbery in this state is defined in Section 813.01, Florida Statutes, F.S.A., as follows:

'Robbery defined; penalties.--Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any lesser term of years, at the discretion of the court.'

If a person is charged with robbery under this statute and the jury reasonably finds from the evidence that the stealing was accomplished without force, violence, assault, or putting in fear, the jury may, under proper instructions from the trial court, find the defendant guilty of the lesser included offense of petty or grand larceny, as defined in Section 811.021, depending upon the proven value of the article or articles stolen--providing, of course, that the indictment or information contains averments sufficiently alleging all of the essential elements of larceny and that the trial evidence is reasonably susceptible of the conclusion that all of the essential elements of larceny have been established. See our recent decisions in Allison v. State, Fla.App., 162 So.2d 922 (1964) and Stewart v. State, Fla.App., 187 So.2d 358, opinion filed June 14, 1966.

It seems to us, however, that in the case at bar the evidence was not reasonably susceptible of an inference by the jury that the articles stolen from Irons were taken without force, violence, assault, or putting in fear. Irons' testimony was uncontradicted that the appellant held a shotgun in his hand and that the six men assaulted Irons, his wife, and their two babies by physically tying them up in bed sheets.

In addition to the foregoing reason why the trial court properly did not charge the jury concerning the lesser included offense of larceny the appellee in its brief contends that such failure to charge was proper because the appellant failed to request in writing that such a charge be given, as required by Section 918.10, Florida Statutes, F.S.A. Since we have above held that such a charge would not have been proper under the state of the evidence, we need not pass upon the merits of this contention, although we note that the Florida Supreme Court has held that the said statutory requirement is not a mere formality. See Foreman v. State, Fla., 47 So.2d 308 (1950) and Brunke v. State, 160 Fla. 43, 33 So.2d 226 (1948).

As mentioned above, the second point raised by the appellant in this appeal is whether the admission of evidence concerning the appellant's mode of dress (convict clothing) was ...