Nelson v. State
| Decision Date | 06 May 1930 |
| Citation | 128 So. 1,99 Fla. 1032 |
| Court | Florida Supreme Court |
| Parties | NELSON v. STATE. |
Commissioners' Decision.
Error to Criminal Court of Record, Hillsborough County; W. Raleigh Petteway, Judge.
Madeline Nelson and others were convicted of robbery while armed with a dangerous weapon, and named defendant separately brings error.
Affirmed.
Edwin R. Dickenson, of Tampa, for plaintiff in error.
Fred H Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
Plaintiff in error, also Naomi Kuhn and Arden Kuhn, were convicted in the Criminal Court of Record of Hillsborough County upon an information charging them jointly with robbing Philip Lavatiatta, while they, the said defendants, were armed with a dangerous weapon; and each was sentenced to three years in state prison. Naomi Kuhn, one of the defendants, procured a separate appeal, and, the judgment being defective, writ of error was dismissed. Cauhn, alias Kauhn v. State (Fla.) 122 So. 565.
The separate appeal of Arden Kuhn from an order of the trial court denying a writ of coram nobis was dismissed upon the ground that the judgment of conviction was invalid and petitioner had other remedies. Kuhn v. State (Fla.) 123 So. 755.
It appears from the transcript that Madeline Nelson, sole plaintiff in error here, was sentenced, but, the record thereof not showing a formal adjudication of conviction, the writ of error was dismissed; the judgment was thereupon corrected and entered in due form, as appears evidenced to this court by special certificate.
While alleged errors are argued as to the admission and failure to admit certain evidence, the plaintiff in error seems to rely for a reversal mainly upon the insufficiency of the evidence to sustain the verdict claiming that it is only supported by the uncorroborated testimony of the complaining witness, Lavatiatta.
Necessarily the jury must have relied to a large extent upon the testimony of the complaining witness, the only state witness present when the offense was committed, and no doubt the jury took into consideration several inconsistent statements made by Mrs. Nelson and the other two defendants. There are many corroborating circumstances which are entirely consistent with guilt and entirely inconsistent with innocence, and these circumstances followed immediately one after another culminating in the dramatic flight of Mrs. Nelson from Tampa and her subsequent return from Mississippi under arrest.
The complaining witness, Philip Lavatiatta, for convenience called Philip, in substance testified: That Mrs. Nelson drove up to his place about July 26, before this robbery occurred on the 28th following, and said she heard he had 'struck' a thousand dollars in a Bolita game, and she tried to sell him a new car for $300. That she could not furnish a title certificate, but would give a bill of sale, and he then declined to take the car. That a day or two later Mrs. Nelson and Naomi Kuhn drove to his place of business, which was on the same day the robbery occurred the night following, and got a drink of liquor. That Mrs. Nelson then said to witness, in the presence of Dr. Myers, 'Philip, I want to go out with you tonight,' to which he replied that he could not go that night as he was already invited by Dr. Myers, but would go with her the next night, but she said she would come get him at Dr. Myers' place rather late. That, after calling up Dr. Myers' place, she and Miss Kuhn arrived in a Chrysler roadster near 9:30 and drove witness from Dr. Myers' house over to where the defendants had rooms. Dr. Myers' testimony corroborated Philip's as to the above incidents. Upon arrival at Mrs. Nelson's, the phonograph as turned on, and, while witness was dancing with Naomi Kuhn, the defendant Arden Kuhn, supposed brother of Miss Kuhn, neither of whom he had known before that day, came in with a gun and said 'Hold them up!' twice, and he put his gun to witness' ribs as he backed against the wall with hands up, when Mrs. Nelson went through his pockets and even his sleeves. That she took $4.35 and said, 'Ain't that a hard luck break?' Then Kuhn said, 'Give him a nickel for street car fare.' There being no street car, he said, 'Give him seventy-five cents for taxi-cab,' but, there being no phone, finally Kuhn and Miss Kuhn took witness down the street and put him out. That the witness gave the alarm at once to police. That Miss Kuhn was arrested, after putting out Kuhn, after a chase of several blocks by police. When Kuhn was arrested later, he gave his name as Daniel Trubie.
The evidence further shows that after that night Mrs. Nelson and the other two defendants abandoned the house where the holdup occurred, and the police and deputy sheriffs located them at a vacant house on Memorial highway belonging to a Mrs. Mays, who, after being wired, returned on Friday after the robbery and found her house had been occupied without her knowledge or consent. The testimony further shows that considerable effort was made to arrest the plaintiff in error by the police and deputy sheriffs, and finally she was recognized as she drove up near the Mays home, whence she made a swift escape, and was recognized and pursued late at night near the county line making a swift flight towards the north in the Chrysler roadster. H. D. Dolphin, deputy sheriff, who brought her back from Mississippi, testified that she told him on the way back that shortly before this trouble she had been out with Philip and got drunk and was under the impression the liquor was doped or something; that he robbed her of $20; that, on the night Philip said he was robbed at her house, 'Buddy' (Mr. Kuhn) asked Philip to give Mrs. Nelson back her $20 that he had stolen from her, and he admitted taking it but did not have it at the time; that this boy 'Buddy' Kuhn put a gun on him and held him up and searched him and took what money he had on him, and it did not cover the amount stolen, and they took him back toward town and put him out; that, after he was put out, he got in a car with a policeman and chased this blonde girl and had her arrested. The deputy states that the above statement is not what he thought, but is what Mrs. Nelson told him.
The plaintiff in error at the trial testified that she and Naomi Kuhn were at Philip's place that day before the alleged robbery and drank some whisky, and they went by Dr Myers' a little after 9 and got Philip, and when they got to her house they had a drink of whisky; that Philip offered them some cocaine, and he took some, and they refused; that they were dancing, and she (Mrs. Nelson) asked him about $20 that he owed her, and he in a laughing way said, 'If I have more than $4.00 on me you can have it and told me I could search him and see and I felt in his pocket and...
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