LaMonte v. State

• Decision Date: 24 October 1962
• Docket Number: No. 2265,2265
• Citation: 145 So.2d 889
• Parties: Christ LaMONTE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 889

145 So.2d 889

Christ LaMONTE, Appellant, v. STATE of Florida, Appellee.

No. 2265.

District Court of Appeal of Florida, Second District.

Oct. 24, 1962.

Frank Ragano, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

SMITH, Judge.

The defendant, Christ LaMonte, appeals from his conviction of the crime of armed robbery, contending that the evidence was insufficient to sustain the verdict, and that the trial court erred in refusing to have portions of the testimony read to the jury at their request.

The State contends that the defendant's motion for new trial did not raise the question of the sufficiency of the evidence and thus the defendant is precluded from raising this point on appeal. The State cites the case of Davis v. State, 1904, 47 Fla. 26, 36 So. 170, in which the Supreme Court refused to consider such a point on appeal because the defendant's motion for new trial did not 'in any way question the sufficiency of the evidence to sustain the verdict.' However, we note that in the present case, one of the defendant's grounds in his motion for new trial was that the verdict was 'contrary to the facts.' Although this may not be the technically correct manner in which to challenge the sufficiency of the evidence, we hesitate to say that the defendant is thereby precluded from raising the question on appeal. Under the authority of § 924.32(1), Florida Statutes, 1961, F.S.A. and Rule 6.16, Florida Appellate Rules, 31 F.S.A., this court may, in its discretion, if it deems the interests of justice to require, review any things said or done in the cause which appear in the appeal record.

Anthony F. Nottage, Jr., the victim of the crime, testified that the robbery took place while he was transporting money belonging to his employer from a bank to his employer's place of business, a Tampa pharmacy. As he drove into an alley at the rear of the pharmacy, he observed an automobile parked in the middle of the alley. One of the three occupants of the car got out and advanced upon the victim. He was wearing a hat, and his face was covered by a rubber mask. Standing at the driver's window and brandishing a pistol, the bandit demanded and received the money from the victim. He then rejoined his two companions in the other car, and the three men sped away. The victim made a notation of the license number of the car and notified the police.

Investigating police officers testified that, a short time after the robbery, they found the automobile, bearing the license number furnished them by the victim, in the driveway of the defendant's place of residence; that the engine was warm; and that, when the defendant returned home (several hours after the robbery), he admitted to the offcers that he was the owner of the automobile. The officers also testified that they found a rubber mask while searching in a closet in the defendant's home, and that the closet contained, among other clothing, some costumes.

The victim testified that he did not recognize the defendant as one of the robbers and that the peson who held the pistol was larger than the defendant. The victim testified further that the mask found by the police officers at the defendant's home was the 'same type mask' as and 'similar' to the mask worn by the robber.

There was another witness to the robbery, but he testified that he could not recognize or identify anyone other than the victim from the testimony as outlined in the preceding paragraphs, we see that the case against the defendant was based entirely upon circumstantial evidence, and that the defendant was connected with the crime in only two ways: First, the automobile used in the robbery was found in the defendant's driveway, and he admitted that he owned it. Secondly a mask similar to that worn by the robber was found at the defendant's home.

In the absence of a statute providing for the presumption or inference, it cannot be inferred in criminal cases that the owner of a car, merely because of his ownership, was operating or in the car at a particular time. People v. Hildebrandt, 1955, 308 N.Y.397, 126 N.E.2d 377, 49 A.L.R.2d 449; State v. Lloyd, 1951, 233 N.C. 227, 63 S.E.2d 150. And see Annotation 49 A.L.R.2d 456, 459. Florida has no statute, applicable to criminal acts, providing for any presumption or inference connecting the ownership of a motor vehicle with its operation. The presumption arising by virtue of § 51.12, Florida Statutes, F.S.A., is limited to civil actions; and § 186.55, Florida Statutes, F.S.A., is applicable only to violations of municipal traffic ordinances.

'When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense. If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent as to which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be. It is the actual exclusion of each other reasonable hypothesis which clothes mere circumstances with the force of proof. Circumstantial evidence which leaves nothing more than a suspicion that the accused committed a crime...