Hicks v. State, E-99

• Decision Date: 10 September 1963
• Docket Number: No. E-99,E-99
• Citation: Hicks v. State, 156 So.2d 22 (Fla. App. 1963)
• Parties: Lynwood HICKS and Buford Waldroff, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 22

156 So.2d 22

Lynwood HICKS and Buford Waldroff, Appellants, v. STATE of Florida, Appellee.

No. E-99.

District Court of Appeal of Florida, First District.

Sept. 10, 1963.

S. Gunter Toney, Tallahassee, for appellants.

Richare W. Ervin, Atty. Gen., and A. G. Spicola, Jr., Asst. Atty. Gen., for appellee.

TAYLOR, Associate Judge.

The appellants, hereinafter called defendants, were charged in the Circuit Court of Jackson County with the crime of grand larceny, tried in July, 1961, and found guilty.

During this trial the defendants were without counsel, but at the close of the evidence one of them stated to the Court: 'Your Honor, we have reason to believe that everybody has lied in this case. I don't see why it would have to go to the jury, these people have lied, everyone of them.'

The presiding judge construed this statement as a motion for directed verdict and denied it.

Thereafter the defendants secured counsel and made a motion for a new trial which was granted 'upon the ground that there was insufficient proof of venue in the record.'

When the case was again called for trial the defendants filed a motion to quash the information on the theory that another trial would subject them to double jeopardy in violation of their rights under Section 12 of the Bill of Rights in the Constitution of Florida, F.S.A. This motion was denied, and defendants applied to this Court for a writ of prohibition to prevent a second trial of their case. This Court entertained their petition, issued the preliminary writ, and posed and decided this question:

'Does the suggestion for writ of prohibition demonstrate that the petitioners are subject to double jeopardy?'

We answered that question as follows:

'The only jeopardy that petitioners can be subjected to is another trial, which they requested. A new trial having been granted on motion of petitioners with the verdict and conviction set aside and the State having not appealed, we, therefore, hold that the petitioners cannot by their own act avail themselves of the jeopardy which they sought and then assert it as a bar to subsequent prosecution for the same offense.' ¹

Defendants were tried again and again found guilty.

On this appeal they first argue that they were improperly subjected to double jeopardy by the second trial. The decision of this question quoted above has become final and is binding alike upon this Court and the defendants.

The only other point argued is that the trial court erred in receiving in evidence the fruit of a search of the persons of the defendants which took place under the following circumstances:

A Mr. Mooney of Ft. Gaines, Georgia, reported to Sheriff L. A. Hamilton of Clay County, Georgia, that he had purchased some tires from two strangers for a price far less than their actual value, and that upon reflection he had become suspicious that the tires had been stolen. Sheriff Hamilton and Mr. Mooney crossed the State line into Alabama and there located the defendants. Mr. Mooney identified the defendants as the men from whom he had purchased the tires, and the defendants denied that they had sold any tires to Mr. Mooney. Sheriff Hamilton then 'arrested' the defendants, and all started toward the Georgia line. One of the defendants questioned the authority of the sheriff to carry him out of Alabama into Georgia. Sheriff Hamilton and Mr. Mooney then took the defendants to the sheriff's office at Abbeville, Alabama, where at the request of Sheriff Hamilton they were searched in his presence by a deputy sheriff of Henry County, Alabama, with the result that sums of money approximating the amount Mr. Mooney stated he had paid for the tires was found on the person of one of the defendants.

It is evident that Sheriff Hamilton had no official standing in Alabama, and his 'arrest' of the defendants, if valid, must be sustained as a citizen's arrest. There was insufficient evidence to support such an arrest, and it must be held to have been illegal.

The State argues, however, that the constitutional prohibition against unreasonable search and seizure is a restriction upon government and not upon the actions of private citizens, and that an illegal search made by a private citizen is not a violation of either the state or federal Constitution, and that, consequently, there is no implied prohibition in either Constitution against the receipt in evidence of the fruit of such a search. It is not necessary to determine this question for the reason that we agree with the statement of the trial judge as follows:

'The Alabama authorities made the search in his...