Newman v. State

• Decision Date: 21 April 1965
• Docket Number: No. 4513,4513
• Citation: 174 So.2d 479
• Parties: Arnold Clifford NEWMAN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 479

174 So.2d 479

Arnold Clifford NEWMAN, Petitioner, v. STATE of Florida, Respondent.

No. 4513.

District Court of Appeal of Florida, Second District.

April 21, 1965.

Charles E. Davis, of Fishback, Davis, Dominick & Troutman, Orlando, for petitioner.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for respondent.

KANNER, Judge, (Ret.).

The skull of a Seminole Indian, John Osceola, about two years deceased at the time, was taken from a box or coffin situated on the ground in a sawgrass island of Big Cypress Swamp in the Florida Everglades, Collier County, by defendant-petitioner, Arnold Clifford Newman, a fourth year student at the University of Miami. He was charged by the State with wantonly and maliciously disturbing the contents of a tomb or grave. Jury trial was waived; Newman was tried before the county judge, found guilty, and was sentenced to six months imprisonment in the county jail. Appeal was taken to the circuit court which, without opinion, affirmed the judgment and sentence.

Newman seeks through petition for writ of certiorari to quash the circuit court's judgment of affirmance, urging in effect that the State failed to establish that he had committed the criminal offense as denounced by the statute ¹ under which he was tried and convicted and that, because of this, there was a departure from the essential requirements of law. Primarily, the State's position is that petitioner presents nothing warranting the issuance of writ of certiorari because there was no flagrant departure from the essential requirements of law and that this petition rather, is an attempt to gain a second appeal.

Under the circumstances reflected by the record, petitioner is entitled to have his case reviewed. As announced in Haile v. Bullock, 1922, 83 Fla. 538, 91 So. 683 at page 684, questions of the weight and probative force of conflicting testimony ordinarily may not be considered; and mere errors of procedure that do not obviously prejudice fundamental rights, to the material injury of complaining parties, may not cause a judgment to be quashed on certiorari; but serious irregularities or material fundamental errors in applying the law, or the entire absence of essential evidence with resulting material injury may be ground for quashing a judgment on certiorari. Thus, as to the facts in review on certiorari, the rule articulated in State Beverage Department v. Willis, Fla.1947, 159 Fla. 698, 32 So.2d 580, 583, is that 'on certiorari the court will not ordinarily review conflicting testimony, but only such absence of evidence as results in injury sufficient to amount to a departure from the essential requirements of law.' As more recently phrased by the supreme court in Cohen v. State, Fla.1957, 99 So.2d 563, 565, 'A judgment that has no competent substantial evidence to support it cannot and should not stand; and an affirmance of that judgment is such a departure from the essential requirements of law as to require this court, in the exercise of its ancient power to issue the common-law writ of certiorari, to quash the order of affirmance.'

In taking cognizance of the petition for the writ under the above pronouncements, we have examined the record and find that there is no competent substantial evidence to support the judgment of conviction.

The State produced as witnesses two Seminole Indians and a deputy sheriff, calling to testify for it additionally a young lady who had come with petitioner as his witness. The import of the testimony of all three witnesses other than the one last mentioned was mainly to identify the burial place of John Osceola, to describe the scene, and to explain the burial customs of the tribe or clan.

The witness, William McKinley Osceola II, in his identification testimony, stated that he was present at the burial of John Osceola. He explained that the Indians never asked permission from any official or from the county, that they bury their dead any place they want to, chosen by the Indians themselves. He did not know who owned the land. He stated that the kin of the dead cannot go back except four moons, or two months, after a body is buried; in all his life he never saw an Indian go back to a grave. After the fourth moon they forget about the body altogether, unless there is some reason to go back. To mark the grave, four sticks are placed across a box and after that everything just rots down to the ground, that's all. The burial place, he said, is kept secret. The other Indian witness, Ruby Osceola, gave further identification testimony.

The deputy sheriff's testimony indicated that the went to the scene the day before the arrest and took pictures. He had never been there before; he could not say whether this was John Osceola or someone else; and of his own knowledge he did not know who took the skull. As an officer dealing with the Indians, he knew this was an Indian burial ground. The land was not part of an Indian reservation, and he did not know who owned it nor whether the Indians had any permission to use that particular land. The witness stated that the box or casket containing the remains was in the thick of a long sawgrass and cypress swamp on high ground; there was no fence, no signs or anything of that type; it was just a swamp. Pictures taken by him and introduced into evidence, by the officer's description in response to questioning, showed a casket, a decomposed body with the head missing, numerous boards lying around, and the lower jaw of a head lying beside the coffin. From his knowledge of the Indians, the usual custom is to put their dead with their personal belongings on the ground open to the elements.

The only eye witness was a young lady above mentioned, who at the time was and had been for three years a student at the University of Miami, a psychology major. She accompanied petitioner into the Everglades and saw him take the skull. The two of them went to the site to take pictures; she herself took a few pictures. As she described the place at various points in her testimony, there was no fence nor anything to show that this was a burial ground; they walked through the sawgrass and there ahead were trees and that's where it was. The top of the box was off and it was just sitting there; she saw it was mutilated, with clothes torn up. After taking the photographs, petitioner took the skull; it was already detached, and he did no poking around and didn't break anything open to get at it; it was just a question of seeing it there, and you just don't know what to make of it. Petitioner made no attempt to hide the skull but told everybody about it and took it in broad daylight. She characterized petitioner as one interested in things naturalistic, a very serious minded student who liked to go hunting and who collected animal and alligator skulls.

At the conclusion of the State's case, as above summarized, petitioner moved for a verdict of acquittal,...