Martin v. State

• Decision Date: 17 June 1930
• Citation: 129 So. 112,100 Fla. 16
• Parties: MARTIN v. STATE.
• Court: Florida Supreme Court

129 So. 112

100 Fla. 16

MARTIN v. STATE.

Florida Supreme Court

June 17, 1930

Commissioners' Decision.

Error to Criminal Court of Record, Palm Beach County; A. G Hartridge, Judge.

Floyd Martin was convicted of robbery, and he brings error.

Affirmed.

Syllabus by the Court.

SYLLABUS

A conviction for robbery, charged under section 7158, C. G. L 1927, 'by force' or 'putting in fear,' the robber 'not being armed with a dangerous weapon,' may be sustained, though the proofs show that the robber was 'armed with a dangerous weapon' and the evidence would have sustained a conviction for robbery under section 7157, C. G. L. 1927.

It is not error, in charging the offense of robbery under section 7158, C. G. L. 1927, to fail to allege that the accused was not armed with a dangerous weapon, as he could suffer no harm from its omission.

If property is unlawfully taken from another either by force or violence or by assault or by putting in fear, the indictment may properly charge these alternate ingredients of the offense conjunctively, and the charge should be sustained if either alternative ingredient is proven.

The degree of force contemplated by law to constitute robbery is such as is actually sufficient to overcome the victim's resistance. Robbery being a substantive offense, the instruments or acts used to produce fear are aggravating circumstances which may increase the penalty if it be a dangerous weapon.

The statute invoked should be substantially followed in charging robbery, and, where the robber is armed with a dangerous weapon, such aggravated fact should be added; otherwise he may only be lawfully convicted of and punished for the lesser offense.

Upon the issue of identity of an accused on trial for robbery testimony of one having heard and who identifies his voice is admissible to be considered, not as circumstantial, but as direct, proof, and its probative force is a question for the jury.

Testimony of the victim of robbery given at the trial that she identified a photograph produced by an officer immediately after the robbery was committed as that of accused was admissible as being a fact within victim's own knowledge and does not fall under 'extrajudicial identification' sometimes inadmissible as not being original testimony or as being hearsay.

Testimony of third persons at the trial that victim identified the defendant or his photograph at some time prior to the trial and not in a court is not generally admissible, as being hearsay.

The opinion, belief, judgment, or impression of an ordinary witness as to the identity of a person or an object is admissible in evidence, provided such testimony is based upon his own knowledge and not on information furnished by another.

Where identification of the defendant is made an issue in robbery cases, the use at the trial of photographs or finger prints, properly identified and introduced, are admissible, where their use does not violate some fundamental rule of evidence.

A photograph may be received as evidence tending to identify a person, and, if its correctness is not attacked, it may be assumed to be a correct likeness; if attacked, the court must pass upon its admissibility.

A judgment should not be reversed for rulings on admission of evidence or other matters of procedure, unless it appears from a consideration of the entire cause that there is such error as would injuriously affect the substantial rights of the complaining party.

COUNSEL

M. D. Carmichael and R. K. Lewis, both of West Palm Beach, for plaintiff in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

ANDREWS C.J

Floyd Martin hereinafter referred to as the defendant, was convicted in the criminal court of record of Palm Beach county of robbery, and sentenced to the state prison for a period of fifteen years.

A motion for new trial was denied, and the case is here for review upon writ of error.

The defendant's contentions here are:

(1) That there is a fatal variance between the offense charged and the one proven; and

(2) That error was committed in admitting 'extrajudicial identifications' of the defendant.

In urging the first contention, defendant insists that, the information being based upon section 7158, Compiled General Laws of Florida 1927, a statement should have been incorporated in the charge to the effect that defendant committed the robbery 'not being armed with a dangerous weapon,' to distinguish it from section 7157, Compiled General Laws of Florida 1927, which defines and provides the penalty for robbery while 'being armed with a dangerous weapon.'

While the evidence shows that the robber was armed with a dangerous weapon (a pistol) at the time of the robbery, and that he pointed it at his victims with a threat to shoot, this alone would not prevent the offense being any the less a robbery committed 'by force, violence or assault, or putting in fear' under said section 7158. The information charges that the defendant made an assault upon Mrs. Ordway, and then and there did 'put the said Josephine Ordway in fear and danger of her life,' and did then and there rob her of the property described.

In the case of Montsdoca v. State, 84 Fla. 82, 93 So. 157, 158, 27 A. L. R. 1291, this court held that:

'If property the subject of larceny is unlawfully taken from another either by force or violence or by assault or by putting in fear, the offense denounced by the statute is committed. The indictment charges these alternative ingredients of the offense conjunctively, and the charge should be sustained if either alternative ingredient is proven.' See, also, McDuffee v. State, 55 Fla. 125, 46 So. 721.

The degree of force used is immaterial. All the force contemplated by the law to make the offense robbery is such as is actually sufficient to overcome the victim's resistance. Montsdoca v. State, supra; Tones v. State, 48 Tex. Cr. R. 363, 88 S.W. 217, 1 L. R. A. (N. S.) 1024, 122 Am. St. Rep. 759, 13 Ann. Cas. 455; 23 R. C. L. 1145. Robbery is the substantive offense charged, and instruments or acts used to produce fear are aggravating circumstances which may increase the penalty if it be a dangerous weapon.

Under defendant's theory of the law, where a defendant is charged with robbery, under said section 7158, Compiled General Laws of Florida 1927, without being dangerously armed, and it develops during the trial that the robber did have upon his person, at the time of the robbery, a loaded revolver, though entirely unknown to his victim, the defendant could not be guilty under such indictment and statute. This is not the proper construction of the offenses covered either by said section 7157, defining robbery while armed with a dangerous weapon, or by said section 7158, defining robbery while not armed with a dangerous weapon. The penalty for the former is higher for obvious reasons, and in this state robbery is a felony whether committed by one armed or unarmed. In the latter case, either one, any or all of the elements of force, violence, or assault, or putting in fear, must necessarily be present, and the fact that the assault or putting in fear was produced by a threatening exhibition of a revolver, makes the offense none the less robbery as defined by said section 7158, Compiled General Laws of Florida 1927.

'The use of deadly weapons or the use of force or putting the victim in fear is a natural or probable consequence of the crime of robbery. The requisite criminal intent is the felonious taking from another of his money or other property.' Killingsworth v. State, 90 Fla. 299, 105 So. 834, 839; sections 7157 and 7158, Compiled General Laws of Florida 1927; Stephens v. State, 92 Fla. 43, 109 So. 303.

The terms of the statute must be substantially followed in charging statutory robbery, and, where it is aggravated, as by the defendant being armed with a dangerous weapon, such added fact must be averred. 3 Bishop's New Criminal Procedure, p. 1866, § 1002; 23 R. C. L. 1150, § 17. While the information does not allege that the defendant was 'not armed with a dangerous weapon,' this was not necessary in charging the offense under section 7158, Compiled General Laws of Florida 1927. In the case of Dykes v. State, 68 Fla. 110, 66 So. 565, this court held:

'The omission of an allegation that the defendant was not armed when he made the assault to rob is to his advantage, and he could have suffered no harm on the trial from the omission of the allegation.'

The defendant admits in his brief that, if the phrase, 'such robber not being armed with a dangerous weapon,' were not contained in said section 7158, Compiled General Laws, an armed robber could be tried under either section, and could be convicted upon a showing that he secured the property from his victim by 'putting in fear,' without requiring the state to prove that the robber intended 'to kill, wound, maim or strike if resisted,' which is essential to allege and prove in a prosecution for a violation of said section 7157.

This court has repeatedly held that, where the evidence may not make out a lower degree of an offense being tried which may be included in a charge of the higher degree, but such evidence is sufficient to sustain the higher offense, the verdict will be sustained as against a motion for a new trial based upon the ground that the evidence is insufficient to support the verdict. McCoy v. State, 40 Fla. 494, 24 So. 485; Mobley v. State, 41 Fla. 621, 26 So. 732; Morrison v. State, 42 Fla. 149, 28 So. 97; Ammons v. State, 88 Fla. 444, 102 So. 642.

To come within the above rule, it is not necessary that both crimes be included in the same statute; as, for example, the different degrees of homicide are defined in...