Newman v. State

• Citation: 196 So.2d 897
• Decision Date: 15 March 1967
• Docket Number: No. 35133,35133
• Parties: Richard Carter NEWMAN, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 897

196 So.2d 897

Richard Carter NEWMAN, Appellant, v. STATE of Florida, Appellee.

No. 35133.

Supreme Court of Florida.

March 15, 1967.

I. C. Smith, West Palm Beach, for appellant.

Earl Faircloth, Atty. Gen., and T. T. Turnbull, Asst. Atty. Gen., for appellee.

PER CURIAM.

This is a direct appeal from a judgment of conviction and sentence imposing a death penalty in a rape case entered in the Circuit Court in and for Palm Beach County, Florida.

It appears from the testimony at the trial of the rape case: On June 2, 1965, Judith Fertig and her fiance, Vern Dahl, drove in a convertible automobile to an isolated area of the beach of the Atlantic Ocean at Boca Raton, Florida, arriving there about 10:00 P.M. Shortly thereafter, the defendant (appellant here) Richard Carter Newman, accompanied by Durell, Jones and Eddie McClendon, came to the beach area in a car driven by McClendon. They came for the purpose of unlawfully taking an automobile. Upon spotting the convertible, they decided to take it. Durell Jones and Eddie McClendon carried guns. Jones ordered Judith Fertig and Vern Dahl out of the convertible. They were taken on the beach where Jones directed the defendant to bind Vern Dahl, which he did. Judith Fertig was then carried a few feet down the beach where the alleged rape occurred. The facts are conflicting concerning the rape. Judith Fertig stated that she was assaulted in turn several times by the three men. The defendant stated that he was present when Jones got on top of Judith Fertig, but he, the defendant did not have sexual intercourse with her.

Several days after the incident related above, the defendant being concerned about the assault discussed it with a friend. He also discussed it with his grandmother with whom he was living. On June 14, 1965, the defendant was approached by a detective from the City of Delray Beach Police on routine investigation of another matter. At that time the defendant voluntarily gave a statement of his, Jones' and McClendon's participation in the assault. The Boca Raton police were then notified and arrests of the three men followed. They were each charged with rape of Judith Fertig and each of them was separately indicted.

The appellant submits five points for consideration in his appeal as follows:

I. Did the trial court make prejudicial error in giving the state's requested instruction under F.S. 776.011, F.S.A.?

II. Did the trial court err in admitting state's exhibit #7 (gun) in evidence?

III. Did the trial court err in allowing witnesses to testify whose names had not therefore been furnished defendant pursuant to order of trial court?

IV. Is there sufficient evidence in the record to convict the defendant under subject indictment?

V. Were the provisions of F.S. 794.01, F.S.A., unconstitutionally applied in this case?

Each of these points will be separately discussed by us and resolved in this opinion.

Point 1. The state requested and the trial judge gave the jury an instruction to the effect that when persons conspire or confederate to commit an unlawful act, each is responsible for the acts of his associates in furtherance of the common design and that this principle would apply to the commission of rape; that in such a rape each person present aiding and abetting is considered as the agent of his associates and all are equally guilty; that where an accused is charged as a principal in the commission of a crime under the theory of conspiracy, it is not necessary to show a previously made express agreement; and that in such a case if an accused is present, aiding and abetting and consciously shares in the commission, he becomes a principal.

The indictment charged the defendant 'with force and arms * * * in and upon one Judith Fertig, a female over the age of ten years, an assault did make, and her, the said Judith Fertig, did then and there carnally know, by force and against the will of her, the said Judith Fertig.'

The appellant contends this indictment was grounded solely on F.S. Section 794.01, F.S.A., the statute denouncing the crime of rape which reads in part:

'Whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will * * *. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only.'

He contends further he was not charged or indicted under F.S. Section 776.011, F.S.A., which reads as follows:

'Whoever commits any offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commission of such offense.'

Not having been charged or indicted under F.S. Section 776.011, F.S.A., appellant contends it was error for the trial judge to give the said instruction requested by the state.

There was testimony from the rape victim that she was raped by all three of the persons alleged to have committed the assault including the defendant. The defendant's testimony as well as testimony of others concerning statements made by him, was to the effect he was present at the time of the assault but he did not actually have sexual intercourse with the victim. He testified that whatever part he took in the commission of the crime was coerced by Durell Jones, who carried a gun, menaced him with it and made him comply with Jones' orders. However, there was conflicting evidence concerning whether defendant was an unwilling participant in the crime. It is apparent that it was because of this latter testimony the said instruction was given, on the theory the defendant's presence and alleged conscious and willing participation, if proved, made him a principal to the crime as an aider or abettor, although he did not physically penetrate the victim.

It is appellant's contention that if only one defendant is charged in an indictment of the crime of rape it is error for the trial judge to allow to go to the jury the question whether such defendant was an aider or abettor to the crime by giving said instruction to the jury.

He cites in support of this contention Jimenez v. State, 158 Fla. 719, 30 So.2d 292; Sons v. State (Fla.App.) 99 So.2d 888; and Carter v. State (Fla.App.) 101 So.2d 911. In each of these cases two or more defendants were charged in the same information or indictment as principals with the commission of a crime. This court held in each of said cases that under such a charge it is permissible to show that one of the defendants actually committed the felony and the other was present aiding, abetting, etc., in the commission thereof, and both may be convicted under such charge and proof. From the holding in these cases appellant argues that as a singly indicted defendant he was not put on notice by the indictment that he was accused as an aider or abettor to a crime with others who physically committed the criminal act or assault and thus was denied opportunity to present his defenses in such posture.

No Florida case on this specific point has been cited to us by the parties nor have we found any.

We do not believe the failure to indict another or others along with the defendant or the failure to indict him singly as an aider or abettor is prejudicial to him or contrary to essential requirements of law. F.S. Section 776.011, F.S.A. was intended to obviate the necessity of indicting persons as aiders or abettors. Presiding Judge Allen of the Second District Court of Appeal in State v. Peel (Fla.App.) 111 So.2d 728, in a well-reasoned opinion, collected and cited pertinent authority upon the question under consideration. He quoted a portion of the opinion in Gambrell v. Commonwealth, 283 Ky. 816, 143 S.W.2d 514, 516:

'There is no merit in appellants' contention that he should not have been convicted as an aider and abettor on a separate trial after Lath had been acquitted as the principal. Appellant was indicted as principal and we cannot determine from the record whether or not the jury convicted him of firing the shot which killed Jones or of aiding and abetting Lath in so doing. However that may be, we have an unbroken line of decisions to the effect that a defendant may be convicted on a separate trial of aiding and abetting the principal in the commission of a crime after the principal has been acquitted. * * *'

In Chaudoin v. State, 118 So.2d 569, the Second District Court of Appeal said, with reference to F.S. Section 776.011, F.S.A. (Ch. 57--310):

'Even in the absence of Chapter 57--310, supra, the appellant would have no ground for complaint. Said legislative enactment only declared what had been the established law in this state for many years as to the form of charge and required proof necessary to convict principals in the first and second degrees in frlony prosecutions. In the case of Neumann v. State, 116 Fla. 98, 156 So. 237, the Supreme Court held that a principal in the second degree may be tried before the principal in the first degree is placed on trial in the discretion of the court, regardless of which defendant is alleged to have actually committed the felony, and such was the law in Florida as early as the case of Montague v. State, 17 Fla. 662. Also, see Skipper v. State, 150 Fla. 259, 7 So.2d 128.'

Notwithstanding the enactment of Section 776.011 in 1957, appellant contends the early former practice of specifying in the indictment that the accused was an aider or abettor should obtain where rape is charged against a single defendant who is sought to be proved an aider or abettor. He urges that F.S. Section 794.01, F.S.A., under which he was indicted as a separately accused person, relates solely to the crime of rape directly committed by one who assaults and penetrates the victim and that an aider or abettor in terms of due process can never be charged under the...