Minor v. State

• Decision Date: 17 March 1908
• Citation: 55 Fla. 77,46 So. 297
• Parties: MINOR v. STATE.
• Court: Florida Supreme Court

46 So. 297

55 Fla. 77

MINOR v. STATE.

Florida Supreme Court

March 17, 1908

In Banc. Error to Criminal Court of Record, Duval County; John S. Maxwell, Judge.

D. A Minor was convicted of larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Evidence on the part of the state tending to show that the accused by compulsion procured one of the state's witnesses to sign an alleged affidavit for the purpose of suppressing evidence against himself is competent; and the testimony of the notary public who signed the alleged affidavit is competent to show that the state's witness did not appear before him and did not sign the alleged affidavit in his presence, and that the same was written and signed by the notary in the absence of the witness, and taken in that condition from the notary's office.

A certain box or case was offered in evidence by the state for the purpose of connecting the accused with the alleged larceny, and a state witness, in order to identify the box was asked this question: 'Does it look like it?' The witness answered: 'Yes; to the best of my knowledge, it is the case that I received at the time.' Held, that this answer of the witness was competent testimony; its value being a question for the jury.

Instructions requested by the accused which treat the evidence on the part of the state as circumstantial alone are properly refused when portions of the state's testimony are of a positive character.

The evidence is sufficient to sustain the verdict. Judgment affirmed.

COUNSEL Jno. E. Hartridge and F. W. Pope, for plaintiff in error.

W. H Ellis, Atty. Gen. for the State.

OPINION

HOCKER, J.

At the April term, 1907, of the criminal court of record of Duval county, D. A. Minor, the plaintiff in error, was convicted of the larceny of certain pieces of silk from the J. D. Horn Company, a corporation, and sentenced to the state prison for one year. He seeks here to reverse this judgment and sentence.

The first assignment of error is based on the action of the court in permitting Paul E. Peck, a notary public, in response to questions of the prosecuting officer, to answer the following questions after two papers purporting to be affidavits--one the affidavit of Ed. Harris--had been handed to the witness '(1) Did you ever see those papers before and, did Ed. Harris appear before you in person and acknowledge that paper before you?' The alleged affidavit of Ed. Harris is as follows:

'State of Florida, County of Duval.

'Before me, a notary public in and for said state and county, personally came Ed. Harris, who, first being duly sworn, deposes and says that he was employed by the J. D. Horn Company in January, 1907, and as their employé, on January 24, 1907, he personally checked and packed the following goods: Three pieces plaid 36-in. silk, 2 pcs. taf. 36-in. silk, 1 piece P. D. S. 36-in. silk, 1 pcs. P. D. S. 36-in. silk and 1 piece taf. 36-in. silk--for shipment to Gresham Importing & Commission Co., Griffin, Ga., and that these goods were in the case when shipped.

'Ed. Harris.

'Sworn to and subscribed before me this 5th day of March, 1907.

'P. E. Peck,

'Notary Public State of Florida.

'(My commission expires June 9, 1907.)'

Ed. Harris was a witness for the state. At the time of the alleged larceny he was a packer and general porter for the J. D. Horn Company. On his cross--examination he was asked if he did not sign an affidavit before Mr. Peck, which was offered to the witness for identification. He denied signing this affidavit before Mr. Peck, but admitted he signed it before the accused, Minor, and at his instance; that he had to make it; that Minor was angry and said: 'By God! it seemed like I wanted to expose the business anyhow, and I signed the paper.' Afterwards Mr. Brown, the attorney for the state, introduced Mr. Peck as a witness, stating that he was introduced for the purpose of corroborating Ed. Harris. It is stated in the bill of exceptions that when Ed. Harris was being cross-examined as to the affidavit the attorney for the accused had called on the prosecuting officer for the affidavit and the latter handed the affidavit to the attorney, stating he could offer it in evidence. It was shown Ed. Harris for identification, and although several questions were asked Harris in regard to it, it was not then offered in evidence. In this state of the testimony the questions were asked which were permitted and assigned as error. It is contended that a notary public cannot be heard to contradict his own notarial certificate. Whatever sanctity may be attached to a notary's certificate, where one is authorized by law to be made, we know of no authority which attaches sanctity to an alleged extra-judicial affidavit such as the one we are considering. Collins v. State, 33 Fla. 446, 15 So. 220. It appears from the evidence of Harris brought out by the accused, which is uncontradicted, that his signature to it was obtained by Minor under some sort of compulsion for the purpose of shutting him up as a witness to Minor's connection with the taking of the goods of the J. D. Horn Company. Minor was endeavoring to suppress the evidence against himself, and we think it was perfectly competent for the state to bring out the facts bearing on his conduct in this connection. Peck was examined, and corroborated Harris to the effect that the latter had not signed the affidavit before the former. Peck explains how Minor got the affidavit out of his possession before Harris had signed it. The court committed no error in this connection.

The second assignment of error is based on the refusal of the court to strike out the testimony of Peck and the affidavits of Harris and that of D. A. Minor and John A. Da Costa. Mr. Peck had testified that neither Harris nor Da Costa had signed the affidavits before him. He says that they were drawn on information furnished by Minor, and that after they were drawn he signed and sealed them, and that Minor took them off, promising to bring the parties before him before they were taken out of his office, but never did it. This transaction tended to show that Minor was endeavoring to shut off the testimony of Harris and Da Costa connecting him with the alleged crime, and was competent.

The third assignment is based on the refusal of the court to strike the answer of a state witness, John O'Neill, to the following question: 'Does it look like it?'--the answer being: 'Yes; to the best of my knowledge, it is the case that I received at the time.' So far as we can gather from the evidence, the case referred to was either a box which was exhibited to the jury in which the silks alleged to have been stolen were packed at the store of J. D. Horn Company to be reshipped to the party in Georgia from whom it had been received, or another box or case in which Minor caused Harris to place Irish potatoes and sacks hereafter referred to. Mr. Horn, the president of the company, had directed that the silk be returned. It seems to have been packed in a box or case for that purpose, and after it was packed the evidence tends to show it was taken out by the accused and the box filled with Irish potatoes and old sacks and reshipped by him to the party in Georgia as containing silk. The object of the question was to identify the box, for which O'Neill, as railroad agent, had receipted as containing silk. Granting that the witness could not swear positively to the identity of the box or case, we know of no rule of law which makes the opinion of the witness inadmissible. It was at least pertinent and relevant, and the value of his opinion was a question for the jury. Dupuis v. Thompson, 16 Fla. 69, text 73. See, also, Jordan v. State, 50 Fla. 94, 39 So. 155; Alford v. State, 47 Fla. 1, 36 So. 436.

Assignments from the fourth to the eighth, inclusive, are based on the refusal of the trial judge to give certain instructions requested by the defendant, based on the theory that the defendant, Minor, at the time of the alleged larceny, was the general manager of the J. D. Horn store, and as such had charge and possession of the silks in question, and that in taking them he committed no trespass, and therefore was not guilty of larceny. If the offense was embezzlement, it is contended there should have been no conviction of larceny. This contention requires a close examination of the evidence and the law applicable thereto. The evidence shows that in January, 1907, when the alleged larceny was committed, the accused Minor was in the employment of the J. D. Horn Company as manager of their mercantile establishment in Jacksonville. According to the testimony of J. D. Horn, the president, he had general supervision of the business, keeping the stocks up, looking after the sales people, advertising, and such duties as would naturally come under the head of the management of a business of that kind. The president, Mr. Horn, had general supervision of the whole business. Minor had not been given authority to sell goods himself, or pack them up. He had authority to fix prices for the sales people, who did the selling and packing. As to Minor's relation to the silk in question the evidence of Mr. Horn is that H. C. Jones was an employé of the company, and had charge of the silk and dress goods department. The silks when received were checked by Jones. Mr. Horn saw and examined them in Jones' department, and did not like them. He ordered Mr. Jones to return them to the shipper. No clerk was authorized by Horn to sell them. H. C. Jones testified that he bought the silks from the Gresham Importing & Commission Company from samples. He says he was instructed by Mr. Horn to return them to the sender as they were of inferior quality. Mr. Jones turned them over to John Da Costa...