Jordan v. State

• Decision Date: 04 February 1965
• Docket Number: No. F-412,F-412
• Citation: 171 So.2d 418
• Parties: John Marvin JORDAN and Charies Allen King, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 418

171 So.2d 418

John Marvin JORDAN and Charies Allen King, Appellants, v. STATE of Florida, Appellee.

No. F-412.

District Court of Appeal of Florida, First District.

Feb. 4, 1965.

Harrell, Caro, Middlebrooks & Wiltshire, Pensacola, for appellants.

James W. Kynes, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.

RAWLS, Judge.

Charles Allen King and John Marvin Jordan were charged with possession of burglary tools by an information naming both as defendants. They were tried together before a jury, found guilty as charged, and now prosecute this appeal.

Defendants' basic contention is set out in the first point on appeal, viz.:

THE COURT ERRED IN PERMITTING TESTIMONY AS TO THE PRIOR CONVICTIONS AND RECORD OF THE DEFENDANTS WHEN THEIR CHARACTER HAD NOT BEEN PUT AT ISSUE.

We agree with such contention, and reverse.

During the course of the trial the following colloquy was had between the prosecuting attorney and one of the officers testifying for the state:

'Q. Did either of the two defendants make any statement to you at the jail, other than what you have testified to here?

'A. Yes, sir. I asked about the car and they told me they had borrowed the car from a sailor at the Horseshoe Bar. They did not have a name for the sailor. I asked them also when they intended to return the car to the sailor and they told me they had made no arrangements to give it back. They also told me that they had served time for breaking and entering and grand larceny.' (Emphasis supplied)

The trial court overruled defendants' motion to strike the above testimony upon the theory that such testimony was material in proving the intent which the defendants may have had with reference to possession of the subject tools. Moments later when this officer was questioned by the prosecution as to any reason the defendants may have given for using fictitious identification cards, he testified as follows:

'A. Yes. Dennis Wayne Sunday or Allen King told me that he had done that because of being on probation. I believe he was on probation at the time. As to Landry, I do not recall.

'Q. When you say 'Landry' you are referring to

'A. Well, I am referring to John Marvin Jordan, yes, Sir.'

In the early case of Mann v. State of Florida, ¹ Mann had been convicted of the murder of one Edmond Dubois. During the course of the trial the decedent's father testified as follows:

'Yes, I suspected him [Mann] of having stolen corn, and told him not to go into the crib again, unless either I or my son [decedent] was with him * * * after which time my son almost invariably accompanied Mann to the crib when he fed.'

The state insisted that the question was asked to show the motive for the crime--that if Defendant Mann was in the crib, as the state claimed was shown by the evidence, he was a trespasser and had a strong reason for avoiding detection there. In holding that allowance of this testimony constituted reversible error, Mr. Justice Van Valkenburgh, in speaking for the Supreme Court of the State of Florida detailed the fundamental principles of law that have governed this subject from the earliest days of our judicial system in this state by stating:

'It is a well settled rule of law that the prosecution cannot call witnesses to impeach the character of the defendant unless the defendant put it in issue. Particular acts of his, or commission of other crimes in no way related to the one on trial, cannot be proved against him. Evidence of the bad character of the defendant, as a foundation upon which to raise the presumption of guilt in the particular case, is not permitted. Every case must be tried on its own merits, and be determined by the circumstances connected with it, without reference to the character of the party charged, or the fact that he way be suspected of having been guilty of committing other crimes than the one charged. When a party is charged with a particular offence, he has notice of the nature and character of such alleged offence and has an opportunity to prepare to defend himself. He cannot be expected to be prepared to defend himself against a charge of which he has had no notice and which is first brought to his notice while on trial for another and distinct offence. We can readily see how the jurors might have been, and probably were, prejudiced by this evidence of the suspicion of the witness, and as all the evidence of the guilt of the defendant was circumstantial, it may have had the effect to produce the verdict of guilty. It was also immaterial whether the witness suspected defendant or not, and was irrelevant to the issue, and for that reason should not have been admitted. In the case of The State v. Lapage, 57 N. H. 245, Cushing, Chief-Justice, in his opinion, says: 'Proceeding then to consider what has been settled in this matter, I think we may state the law in the following propositions:

"1. It is not permitted to the prosecution to attack the character of the prisoner, unless he first puts that in issue by offering evidence of his good character.

"2. It is not permitted to show the defendant's bad character by showing particular acts.

"3. It is not permitted to show in the prisoner a tendency or disposition to commit the crime with which he is charged.

"4. It is not permitted to give in evidence other crimes of the prisoner, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions.

"It is a maxim of our law, that every man is presumed to be innocent until he is proved to be guilty. It is characteristic of the humanity of all the English speaking people that you cannot blacken the character of a party who is on trial for alleged crime. Prisoners ordinarily come before the court and jury under maniffest disadvantages. The very fact that a man is charged with a crime is sufficient to create in many minds a belief that he is guilty. It is quite inconsistent with that fairness of trial to which every man is entitled that the jury should be prejudiced against him by any evidence except what relates to the issue; above all, should it not be permitted to blacken his character to show that he is worthless, to lighten the sense of responsibility which rests upon the jury, by showing that he is not worthy of painstaking and care."

These principles of law were carried forward in Roberson v. State, ² an 1898 case wherein the Supreme Court stated:

'Over defendants' objections, this witness and one of the other officers (Brocksmith) were permitted to testify that this search was made under authority of a search warrant issued at the instance of a person other than Kedney or his agent, and concerning other and different goods supposed to have been stolen from another party at a different time in no way connected with the crime charged in the information. In admitting this evidence the court was clearly in error. The search for and finding of the Kedney goods, together with the explanation as to their possession then offered by the Edenfield's, was relevant and admissible; but the authority under which the search was made, not having been issued in connection with the crime charged, was irrelevant, and calculated to injure the defendants by showing that they were charged with, or suspected of, the commission of other and distinct crimes in no way connected with the one on trial. Mann v. State, 22 Fla. 600; Selph v. State, Id. 537. For the same reasons the court erred in permitting the witnesses Gordon and Anderson to testify as to the arred of defendant Roberson on September 28th, under a warrant for another offense in no way connected with the crime charged in the information.'

These principles of law have been adhered to by our Supreme Court in an unbroken line of decisions, including the famed Williams v. State case, ³ wherein Justice Campbell Thornal reviewed the cases dealing with this question and concluded by laying down the...