Holzapfel v. State, 59-509
| Decision Date | 21 April 1960 |
| Docket Number | No. 59-509,59-509 |
| Parties | Floyd Albert HOLZAPFEL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Engel & Housen, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and Irving B. Levenson, Asst. Atty. Gen., for appellee.
Floyd Albert Holzapfel was tried and convicted in the Criminal Court of Record of breaking and entering a building with intent to commit grant larceny. He was adjudged guilty and sentenced to confinement at hard labor in the state penitentiary for a term of fifteen years. From the judgment and sentence he has appealed to this court. He presented for review 14 assignments of error under 6 points. In view of the holding of this court that the judgment and sentence must be set aside and the trial court directed to grant the defendant's motion for a new trial, it is necessary to consider only points numbered 5 and 6.
Under point numbered 5 the defendant questions the sufficiency of the evidence to support the conviction upon the contention that the evidence failed to establish the possessory right to the premises alleged to have been invaded.
Point 6 urges that the defendant is entitled to a new trial under section 920.05(1)(a), Fla.Stat., F.S.A. 1 It is alleged that the jurors were guilty of misconduct by communicating with the officer in charge of the jury and receiving from said officer certain instructions outside of the presence of the defendant and the presence of the presiding judge.
For convenience we will first discuss point 6. The record reveals that after the jury had retired the court was informed that the bailiff had communicated with the jury. The court recalled the jury and the following discussion took place.
'The Court: The bailiff tells me you asked him a question and he gave you an answer and I want to tell you it is improper for him to tell you anything.
'The Foreman: The charge was breaking and entering with intent to commit grand larceny?
'The Foreman: That is the question.
'The Court: What did he tell you?
'The Foreman: He said it was right.
'The Court: Did you ask him anything else?
'The Foreman: No.
'The Court: Is there anything else you want to know in that regard before I send you back?
'The Foreman: No sir.
'The Court: All right, go ahead.'
Whereupon, the jury retired from the courtroom at 11:00 P.M.
Upon motion for new trial an effort was made to determine exactly what occurred between the bailiff and the jury. At that time the court took the testimony of the deputy clerk of the court:
Since it thus appears that there is some doubt as to the report that was made of the incident, it is not certain as to what actually happened between the bailiff and the jury. In the criminal law the procedural aspects affecting the substantial rights of the defendant must be strictly observed for it is essential that an accused receive a fair and impartial trial as guaranteed by § 11 of the Declaration of Rights of the Constitution of Florida, F.S.A. To this end the statutes of the State of Florida prescribe certain safeguards pertaining to the conduct of a trial which must be followed exactly.
One of these safeguards is section 919.05, Fla.Stat., F.S.A. 2 The position of the State that the answers of the bailiff were a correct statement of the law is not sufficient. The court and the court alone is entitled to instruct jurors as to the law and this must be done in the presence of the defendant. See section 919.05, supra; cf. Smith v. State, Fla.1957, 95 So.2d 525, 527.
Another of these safeguards is section 918.07, Fla.Stat., F.S.A. 3 One of the admonitions to the officer in charge of jurors in this latter section is as follows: 'Such officer shall not communicate with the jurors on any subject connected with the trial, * * *.' It is thus apparent that the error complained of is not a minor one.
We turn now to a consideration of defendant's point numbered 5. The defendant questions the sufficiency of the evidence to support the conviction upon the basis that the evidence failed to establish the possessory right to the premises alleged to have been invaded. The information upon which the defendant was tried alleged that the defendant broke and entered a building located at 2460 S.W. 16th St., City of Miami, Dade County, Florida, the property of R. L. Stokes and Thelma Stokes. In response to defendant's motion for bill of particulars the State gave the name and address of one Rafael Cabrera as the person who was lawfully in possession of the property on the date in question.
The witnesses, R. L. Stokes and Thelma Stokes, testified that they were the fee simple owners of the premises in question and that they had rented the premises to one Roberto Garcia at a rental of $125 per month. The written lease was for a term of one year and was executed in October of 1958 and was to terminate in October of 1959. The defendant was accused of breaking and...
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Anderson v. State, 77-213
...3d DCA 1977); Jackson v. State, 259 So.2d 739 (Fla. 2d DCA 1972); Gagne v. State, 138 So.2d 90 (Fla. 2d DCA 1962); Holzapfel v. State, 120 So.2d 195, 197 (Fla. 3d DCA 1960). One of the essential elements of the crime of burglary relevant here is that the burglarized structure or conveyance ......
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Haugland v. State
...at trial and the convictions entered thereon cannot stand. Cannon v. State, 102 Fla. 928, 136 So. 695 (1931); see also Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960). It is true, as the state argues, that the element of ownership in a burglary prosecution constitutes "any possession w......
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Williams v. State
...circumstances of this case, the bailiff's answer might have been shown to be correct, the impropriety is not excused. Holzapfel v. State, 120 So.2d 195 (Fla.App., 1960). In effect, the bailiff assumed the power to answer an inquiry on a question of law which should have been answered only b......
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Williams v. State
...stands for the proposition that such errors should be analyzed using harmless error principles. In Ivory, we also cited Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA), cert. denied, 125 So.2d 877 (Fla.1960), and McNichols v. State, 296 So.2d 530 (Fla. 3d DCA), cert. denied, 303 So.2d 645 (......