Louette v. State

• Decision Date: 05 March 1943
• Citation: 12 So.2d 168,152 Fla. 495
• Parties: LOUETTE et al. v. STATE.
• Court: Florida Supreme Court

12 So.2d 168

152 Fla. 495

LOUETTE et al. v. STATE.

Florida Supreme Court

March 5, 1943

Appeal from Criminal Court, Hillsborough County; John R Himes, judge.

Whitaker Brothers, of Tampa, for appellants.

J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen for appellee.

BROWN, Justice.

An information was filed in the trial court against Don Louette, John Stofer Jr., and Charlie William Pittman, alias 'Biscuit,' charging the three defendants in the first count with breaking and entering a certain store-house located in the Fairgrounds in the City of Tampa, the property of the Beckwith-Holmes Company, a corporation, with the intent to steal goods and property of the value of more than fifty dollars. The second count charged them with the larceny, on May 22, 1942, of four automobile wheels, tires and tubes, of the value of $160, the property of said corporation. The third count charged Louette and Stofer with unlawfully buying, receiving and aiding in the concealment of stolen property, on the same date and the description of the property being the same as in the second count.

Another information was filed at the same time against Louette and Pittman, the three counts of which were similar to the first, except that Stofer's name was omitted and the property was described as eight automobile tires and wheels and the date of the alleged crimes was stated to be May 25, 1942.

Defendant Pittman plead guilty to entering without breaking to commit grand larceny as charged under the first counts of each information, and to grand larceny as charged in the second count of each information.

The County Solicitor abandoned the first two counts of the information insofar as defendants Louette and Stofer were concerned, and elected to go to trial against them on the third counts of the two informations, which charged them with buying and receiving property knowing it to have been stolen. By agreement the two cases were consolidated and tried together. Both defendants were found guilty by the jury, and from the judgments of conviction entered by the court the defendants appealed. These two appeals were submitted here on one transcript and argued together.

Employees of the Beckwith-Homes Company testified that they discovered that, in all, 28 wheels, together with their tires and tubes, had been taken off of new automobiles which had been stored and jacked up in said storeroom, which storeroom was used by said corporation for the storage of some 52 new Packard and Hudson cars until the government would permit their sale.

This was reported to the police department, and officer Fisher was sent to investigate. He testified as to his investigation and the subsequent arrest of Pittman, and Louette and Stofer; that he first saw Louette in a room in the City jail after his arrest and there talked to him. Counsel for the State then asked officer Fisher if he asked Louette 'about some tires,' and he answered 'Yes, sir.' Then the prosecuting attorney asked him: 'Please state what he said with reference to tires and wheels at that time * * * whether or not he bought any?'

Counsel for defendant Louette objected to this question on the ground that the testimony of the witness had shown that Louette had been arrested and was in custody at the time, and no proper predicate had been laid or foundation established for the admission in evidence of any statement that might have been made at that time as evidence against the defendant on this trial. The jury was sent out and the Assistant County Solicitor stated to the court that he did not intend to introduce any evidence of any confession; that no confession had been given; that the testimony to be adduced was in the nature of an admission. The court then overruled the objection upon the ground that what the State expected to prove is considered only as an admission and not as a confession. After the jury was recalled counsel for the State asked this question: 'Mr. Fisher, I believe the last question was where did you see Don Louette the first time after talking with Biscuit?' To which the witness answered: 'At the police station.' Question: 'All right: tell us what happened from the time you saw him there, where he went, what took place.' Whereupon, counsel for Louette renewed the same objection already made, which was overruled. Officer Fisher then answered that he and his partner Mr. Keen took Mr. Louette in their car, and explained to him that these tires had been stolen and 'we told him that we had information that some of these tires were in his possession and Louette said that he had eight tires, tubes and wheels.' Then the officer asked him if he would mind taking them out there and showing them to them; that Louette said 'No, not at all,' he would 'be glad to take us out and show them to us.' That he said further: 'If there is anything wrong with them, this negro Biscuit, I bought them from him and he told me they were all right.' Whereupon they drove out to Louette's place in Lutz and there Louette showed them 8 tires, tubes and wheels. That he, Fisher, took the numbers of the tires, made a record of them, gave Louette a receipt and took them as evidence. Then they took Louette back to the police station and put the tires in the property room. Over defendant's objections the officer was permitted to testify further, in answer to the question: 'Did you have any conversation about any other tires at his place?' That he told Louette that there were 28 of these tires, tubes and wheels missing and 8 of them had been recovered, and that he, the officer, then asked Louette if he knew anything about any other of these tires, and he said: 'No,' that that was all he knew anything about. That on the way back to the station Louette said: 'If there is anything wrong with those tires, I bought them from a negro named Biscuit and John Stofer brought him to me.' And in answer to a further question he told who John Stofer was and where he lived. The court instructed the jury that this statement as to Stofer could not be considered about defendant Stofer, he not being present when the statement was made. That he, the officer, then went to see Stofer and Stofer said he knew nothing about the tires and that he had none in his possession except some old ones that were no good and insisted on his place being searched and no tires was found except the old ones referred to. That on the way to the station he asked Stofer if he knew the negro Biscuit and he replied that he did. That after arriving at the station he and officer Keen took Stofer to their room and explained to him 'just exactly what the situation was;' 'that these tires had been stolen; that we had recovered 8 of them from Mr. Louette and Mr. Louette had told us if there was anything wrong with those tires that Mr. Stofer had been the one that brought the negro to him in order to make the sale, and I told him also that this negro Biscuit had said that he had been with him; that he had gone with him when he went to get the tires at the warehouse and I asked him if that was true and he said 'no." At the request of Louette's counsel the court instructed the jury not to consider this statement against the defendant Louette.

Then officer Fisher continued that they brought Mr. Louette into the room with Mr. Stofer and asked Louette to tell in front of Stofer what he had told them about the tires and Louette said that he had bought these tires from Biscuit after Mr. Stofer had sent the negro to him to sell the tires. They then asked Stofer if that was right and he said 'no.' That they then brought the negro Biscuit into the room and asked him to tell the story that he had told to them and that Biscuit said that he had gone to Mr. Stofer's house to sell him these tires and told him he knew where he could get some new tires; that Stofer told him he did not have the money to buy them but he knew who would buy them and that Stofer took him in his car to the police station where he and Stofer met Louette, and that the three of them got into Mr. Louette's car and went out to the Fairgrounds, and parked the car near the North door of the Art Exhibit building, (the building used by the Beckwith-Holmes Co. as a store room) and while Louette and Stofer sat in the car he, Biscuit, went into the building and got 4 tires and brought them out and put them in the car and drove off.

At this point counsel for the defendant renewed his same objection, and said that he presumed the court was applying the same objection to this testimony all the way through, to-wit: that 'no proper predicate has been laid.' The court overruled the objection.

'Biscuit' further said they drove to Cass Street and North Boulevard and that Mr. Louette gave him at that time $20 and he got out and Stofer and Louette drove on off. That two or three days later he went to the Sanitary Department, where Louette was employed, and met Mr. Louette in the afternoon and told him that he had some more tires to sell; that Mr. Louette told him to meet him that night at 9:30 at Cass Street and North Boulevard, which witness did, and he and Louette went back to the same building and witness went inside again and got 8 tires, tubes and wheels and put them in the car. That he wasn't exactly sure about the money given him at that time but that he got about $70 in all for all 12 tires.

At this point counsel for State asked the witness, Fisher, 'Now, what, if anything, did Don Louette say after hearing the negro make that statement?' To this question counsel for Louette objected upon the same ground above mentioned, which objection was overruled.

The witness answered that Louette admitted that he had gone with the negro, in his car, with Mr. Stofer, to this building, but the negro had...