Marsh v. State, 66--929
Decision Date | 12 September 1967 |
Docket Number | No. 66--929,66--929 |
Citation | 202 So.2d 222 |
Parties | Alan Stewart MARSH, Sr., Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Robert L. Koeppel, Public Defender and George O. Kluttz, Special Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Barry N. Semet, Asst. Atty. Gen., for appellee.
Before PEARSON and HENDRY, JJ., and SPAET, HAROLD B., Associate Judge.
Appellant, Alan Stewart Marsh, Sr., was charged, along with one, William Underwood, with the crimes of breaking and entering with intent to commit a felony, and grand larceny. Separate trials were had for each defendant.
The subject of the grand larceny was a safe transported from the premises of Loew's 170th Street Theater in Dade County, Florida.
The safe was taken from the appellant's automobile, by police officers, who saw the safe on the back seat of the automobile uncovered and in plain view.
The appellant testified in his own behalf and explained his possession of the safe at the time and place as follows:
That Underwood, a co-employee of the trucking firm, where appellant worked, asked him to help Underwood move the safe from Loew's 170th Street Theater down to Loew's Riviera in South Miami, Florida. That Underwood's cousin was the manager of the theater and would pay them $10.00 for the job. (State's witness, Poss, manager of the theater likewise testified to the relationship between Underwood and himself, and that Underwood had the keys to the front door of the theater and the supply room.)
That in removing the safe, the appellant ripped the seam of his pants and stopped at his apartment to change. That the apartment was next to the Club Johnson, in Medley, on the parking lot of which the car and safe were found.
Essentially, the State's proof was bottomed on the appellant's unexplained or 'unsatisfactorily explained' possession of the stolen property. The State so contends in its brief citing Cone v. State, Fla., 69 So.2d 175.
With that in mind, we feel the court below committed reversible error in permitting the prosecuting attorney to lay an illusory foundation for an imaginary impeachment of the appellant's testimony. What occurred is revealed in the following excerpt from the record:
'Q (by Assistant State Attorney in cross-examining appellant) Do you know somebody by the name of Myrna Adams?
A Yes, I do.
Q Do you know where she works?
A Johnson's.
Q In the bar there; doesn't she?
A Yes. She is a barmaid there.
Q Isn't it a fact that you and Mr. Underwood were in that bar drinking and you bragged to Mr. Adams (Sic, Myrna Adams obviously intended instead of Mr. Adams) that you were going to go break in a place and steal a safe?
A No.
Q (By Mr. Moran) You were in the bar with Underwood and talking to Myrna Adams--
A Definitely.
Q Yes.
A No, sir, not on the 10th.
Q So, it is your testimony that you weren't in there talking to Myrna Adams?
A On the 10th, no, sir.
Q Well, had you ever been in there any other nights bragging about going in and getting a safe?
A No, sir.
(Thereupon the jury retired from the courtroom, and the following proceedings were had):
(Thereupon the jury returned to the courtroom, and the following proceedings were had):
(Counsel for both parties waived polling of the jury.)
THE COURT: All right. The Court will sustain the objection and instruct the jury to disregard the last question asked of the witness by the prosecutor.'
The only legitimate purpose for asking the appellant-defendant who had taken the stand on his own behalf whether he had bragged to Myrna Adams was to lay a foundation for impeachment. F.S.A. Sec. 90.10. When the Presiding Judge inquired of the Assistant State Attorney whether he had such testimony and was so representing to the Court, the Assistant State Attorney replied 'I represent nothing'. The damaging effect of the inquiry on the jury is apparent. The...
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