Norris v. State
| Decision Date | 05 June 1942 |
| Parties | NORRIS v. STATE. |
| Court | Florida Supreme Court |
Appeal from Court of Record, Escambia County; Ernest E mason, judge.
D. W Berry, of Pensacola, for appellant.
J. Tom Watson, Atty. Gen., Millard B. Conklin, Asst. Atty. Gen., and Woodrow M. Melvin, Sp. Asst. Atty. Gen., for appellee.
On appeal we review judgment of conviction under an information in two counts the first charging the breaking and entering of a building with intent to commit a felony, and the second charging grand larceny.
Appellant presents five questions which we are requested to determine. They are as follows:
'1. Does the evidence in this case make out a prima facie case sufficient to go to the jury?
'2. Should the Court have directed a verdict?
'3. Did not Court have the right to call the jury back after they had retired to consider of their verdict and recharge them on either the facts or the law involved in the case, after the jury had advised the Court that the reason that they had been deliberating was a question of fact?
We have examined the evidence submitted in this case and find that the propriety of the conviction hangs upon the testimony of a night watchman who positively identified the defendant as one of the men whom he saw run from the building where the crime is alleged to have occurred to the edge of the dock which extended into Pensacola Bay and whom he saw jump from the dock into the Bay and whom he saw and talked to under the glare of his flash-light while the accused was in the waters of the Bay and asking him for help. As against this evidence the defendant attempted to establish an alibi. The alibi was strong in many respects but it was not sufficient to warrant us in saying that it was so convincing as to require a reversal of the judgment here under consideration.
The sufficiency of identification was discussed by us in the case of Beck et al. v. State, 142 Fla. 524, 195 So. 143. Under the rule there stated we must reach the conclusion that in this case as reasonable men, the jury could have found the verdict rendered upon the evidence.
What we have said above is sufficient to show that the trial court did not commit error in declining to direct verdict for defendant.
As to the third question, the record does not disclose, except by reference in motion for new trial, which motion is not self-proving (See Shultz v. State, 131 Fla. 757, 179 So. 764) that the trial court indulged in the action complained of. If, however, the matter complained of was made to appear by the record it would not...
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