Johnson v. State, G-70
| Decision Date | 30 March 1965 |
| Docket Number | No. G-70,G-70 |
| Parties | Arthur Leroy JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
T. Edward Austin, Jr., Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.
Appellant Arthur Leroy Johnson appeals from a judgment convicting him of the crime of robbery. His sole point on appeal is that the trial court erred in failing to give proper instructions as to the lesser included offenses of grand larceny and/or petit larceny. Appellant concedes that he did not request such an instruction or object to the charges actually given.
Appellant was charged by information with the crime of robbery in that he did '* * * by putting in fear, unlawfully and feloniously rob, steal and take away from the person and custody of Juan Luis Viruet, one (1) lot of coins and currency of the United States of America, of the value of Fifty-nine Dollars and Seventy-two cents ($59.72), * * *.' Juan Luis Viruet was working as a night manager of a service station on the date of the alleged robbery. He testified that defendant Johnson and the co-defendant, one Robert Graves, held him up late one night with a pistol, robbed him of all the bills and change he had on his person and also took a sum of money out of a cigar box. He further testified that during this time defendant Johnson held the pistol on him and upon leaving shot it a couple of times in his direction. Shortly after the robbery a checkup revealed that he had been robbed of the approximate sum of $59.72. The arresting officer, who seized defendants in close proximity to the service station immediately after the robbery, testified that he found in defendants' possession the sum of $59.72, and put this money in a sack which was introduced into evidence and which included one roll of pennies wrapped in a distinctive wrapper used by the service station.
Defendant Johnson denied any connection with the robbery, taking the position that he was a mere hitchhiker, had not had possession of the pistol, had not stayed at the service station any length of time and had not fired the pistol or done any of the things as testified to by the prosecuting witness Viruet, although he did state that he and Graves were together during this period of time. The co-defendant Graves testified approximately to the same effect as Johnson, vehemently denying any connection with the robbery. Thus, the jury was presented with the issue of whether or not the defendants had robbed Viruet of more than $50.00 at the time set out in the information. There was no issue as to the amount in controversy and the only proof adduced was that Viruet had been robbed on this occasion of the approximate sum of $59.72.
Judge Sturgis, speaking for this Court in Silver v. State, 1 clearly recognized the rule that obtains in a situation such as here presented, wherein he stated:
'The appellant, relying on the authority of Allison v. State, 162 So.2d 922 (Fla.App.1964), Jimenez v. State, 158 Fla. 719, 30 So.2d 292 (1947), and ...
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Brown v. State
...indictment or information. This rule, of course, is a refinement of the above rule numbered 3. We recognized this rule in Johnson v. State, 173 So.2d 487 (Fla.App.1965), and Silver v. State, 174 So.2d 91 (Fla.App.1965), as discussed below. We stated the same rule in Allison v. State, supra,......
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Carlisle v. State
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