Morton v. State

• Decision Date: 12 January 1968
• Docket Number: No. 67--218,67--218
• Parties: Aubrey V. MORTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 662

205 So.2d 662

Aubrey V. MORTON, Appellant, v. STATE of Florida, Appellee.

No. 67--218.

District Court of Appeal of Florida, Second District.

Jan. 12, 1968.

Rehearing Denied Jan. 31, 1968.

Robert E. Jagger, Public Defender, and Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

This is an appeal by Aubrey V. Morton, defendant in the Court below, from a judgment and sentence entered against him pursuant to a jury verdict finding him guilty of stealing an automobile.

Defendant was informed against in the Pinellas County Circuit Court for larceny of a 1955 Plymouth automobile, the property of Barbara A. Armstrong. Upon trial before jury, he was found guilty of the charge contained in the information, and he appeals to this Court from a judgment and sentence entered by the Court pursuant to the verdict. Two contentions are made here for reversal: (1) the State failed to prove sufficiently the nonconsent of the car owner to the taking of the vehicle by defendant, and (2) the Court should have declared a mistrial when, on cross-examination, after defendant had admitted being previously convicted of a felony, he was asked the further question, 'How many times?' We consider these two questions in inverse order.

(1) The question as to plurality of convictions.

After the State had rested its case, defendant took the witness stand and after finishing his direct testimony, the cross-examination began as follows:

'BY MR. ALLWEISS (Asst. State Atty.):

Q Mr. Morton, have you ever been convicted of a felony?

A I have, sir.

Q How many times?

MR. FURNELL (Asst. Public Defender):

I object, Your Honor. I would like to approach the bench.

* * *

* * *

THE COURT: The objection to the second question is sustained. I don't think it was answered. The jury is instructed to disregard the second question.'

Thereafter the Court denied a motion for mistrial based upon the foregoing. It will be observed that objection was sustained to the question 'How many times?' Defendant contends that the Asking of the question was prejudicial and that the Court should not only have disallowed the answer but also have granted a mistrial. There is no merit in such contention.

F.S. Sec. 90.08 F.S.A. reads as follows:

'90.08 Witnesses; conviction of other crimes as disqualification

No person shall be disqualified to testify as a witness in any court of this state by reason of Conviction of any crime except perjury, but his testimony shall be received in evidence under the rules, as any other testimony; provided, however, evidence of such Conviction may be given to affect the credibility of the said witness, and that such Conviction may be proved by questioning the proposed witness, or, if he deny it, by producing a record of his Conviction. Testimony of the general reputation of said witness may likewise be given in evidence to affect his credibility.' (Emphasis supplied).

It will be noted that in the body of Sec. 90.08 the word 'crime' is in the singular while in the title it reads 'crimes' in the plural. In several cases the Florida Supreme Court, and also the 5th U.S. Court of Appeals, have held, in construing said section, that it contemplates prior convictions in the plural sense. Mead v. State, Fla.1956, 86 So.2d 773; Lockwood v. State, Fla.App.1958, 107 So.2d 770; Collins v. State, 1944, 155 Fla. 141, 19 So.2d 718; Williams v. United States, 5 C.A.Fla.1931, 46 F.2d 731, and Whalen v. United States, 5 C.A.Fla.1966, 367 F.2d 468.

We quote briefly from these cases, beginning with Mead (text 86 So.2d 774):

'* * * (O)nce the appellant became a witness he could be examined the same as any other witness about matters that would illuminate the quality of his testimony, and in the process he could be properly asked about former Convictions of 'crime.' Sec. 90.08, Florida Statutes 1953, and F.S.A. Evidence of conviction of other Crimes might affect the credit the jury would give his story, Martin v. State, 86 Fla. 616, 98 So. 827, cited in Watts v. State, 160 Fla. 268, 34 So.2d 429.' (Emphasis supplied)

In Collins (text 19 So.2d 719):

'The fourth and fifth questions challenge the propriety of the cross-examination of defendant by the State's Attorney (when the defendant was testifying on the trial as a witness in his own behalf) as to former convictions of defendant. From careful consideration of the record, we do not find that the course pursued by the State's Attorney offends against the enunciations by us in the case of Washington v. State, 86 Fla. 519, 98 So. 603, or in Martin v. State, 86 Fla. 616, 98 So. 827. In the case before us the State's Attorney did not seek to have the witness state the facts or circumstances of any offense of which he had been convicted; neither did he attempt to show that defendant had been convicted of any offense involving personal violence. The examination sought to elicit information as to the number of times, if any, the witness has been convicted. The defendant requested no charge by the trial court in regard to the effect, if any, to be given such evidence and, therefore, cannot be heard to complain that no special charge was given as to this.'

In Williams (text 46 F.2d 732):

'It is elementary that, when a defendant takes the stand, he may be asked any question that would tend to impeach him the same as any other witness, and he may be interrogated as to previous Convictions. It was proper to interrogate these defendants as to their own previous Convictions. * * *' (Emphasis supplied).

And in Whalen (text 367 F.2d 470):

'The court did not commit error when it asked the defendant if he had been Convicted of more than one felony after the defendant had admitted that he had been convicted of one felony. The law is settled in this circuit that for purposes of impeachment evidence of prior convictions may be introduced against a defendant who takes the witness stand. The rule of impeachment by prior conviction is not limited to the mention of only one conviction or of simply 'prior conviction'. See, for example, Kemp v. Government of Canal Zone, 5 Cir. 1948, 167 F.2d 938, 940 (two felonies); Russell v. United States, 5 Cir. 1945, 146 F.2d 129 ('previous convictions of crime'); Matthews v. United States, 5 Cir. 1945, 145 F.2d 823 ('other felonies').' (Emphasis supplied).

Lockwood was a case decided by this 2nd District Court, and the opinion by Judge Allen first quotes the record as follows:

'Defendant was charged with robbery, and during the trial, on cross-examination of defendant, the following occurred:

'Q. Have you ever been convicted of a crime in a Criminal Court of Records? A. Yes.

'Q. How many times? A. Once.

'Mr. Morton: I object.

'Q. (By Mr. Sandstrom) How many times? A. Once.

'Q. When was that?

'Mr. Morton: I object. It is irrelevant and immaterial. It is an improper question.

'The Court: Objection denied."

It will be observed that the question: 'How many times?' was the same identical question as is strenuously urged here, only in Lockwood it was asked not once but twice; also there the objection was overruled and the question answered, while here the objection was sustained and the jury instructed to disregard the question. On the question raised, this Court in Lockwood said (text 107 So.2d 772):

'In Mead v. State, supra, and cases therein cited, we find a rather clear-cut procedure to be followed by the State in cases such as the one we now have before us. When the defendant testifies on his own behalf, he may be asked whether he has ever been convicted of a crime. If he admits such conviction, assuming for the moment there was only One, the matter must stop at that point. If he denies such conviction, the State may, on rebuttal, put the record of the conviction into evidence and show that defendant is the person named in such record.

'We emphasized, in the above generalization, that our imaginary defendant had been convicted of only one prior crime. In the present case, defendant had apparently been convicted three times prior to the charge here involved. However, a careful review of Florida decisions, though not revealing a case directly on point, indicates that A prosecutor may, after getting defendant to admit at least one prior conviction, ask how many times defendant has been convicted. Watts v. State, 1948, 160 Fla. 268, 34 So.2d 429; Collins v. State, 1944, 155 Fla. 141, 19 So.2d 718.' (Emphasis supplied).

Other States uniformly adhere to the same rule. In 98 C.J.S. Witnesses § 507 c. page 411, is the following:

'While the impeaching evidence is restricted to the fact of conviction, and cannot show details and incidents of the crime, it may show the name and nature of the crime, And the number of convictions. It is immaterial where the conviction was obtained, provided the crime is a sufficient one, under the law of the forum, for impeachment purposes.' (Emphasis supplied).

And again, on the same page in the text:

'It may be shown that the witness has been convicted of crime several times.'

Supporting the foregoing text are cases cited from the District of Columbia, Kentucky, Oregon, Arizona, California, Utah, and the Federal Court of Appeals in Nebraska. No conflicting authority is cited.

There is no merit in the contention made here.

(2) Lack of evidence as to non-consent of owner.

The point here urged is that the State failed to sufficiently prove that the owner of the vehicle in question did not consent to the taking. This involves a brief excursion into the facts adduced at the trial.

During the evening of December 2--3, 1966, one Donald E. Armstrong was 'bar hopping' in St. Petersburg in a 1955 Plymouth automobile just purchased for his wife, Barbara A. Armstrong, from one Thomas of Thomas Motors in Clearwater. Upon leaving the last bar, known as the Executive Lounge, he noticed his new Plymouth missing from where he...