Riner v. State

• Decision Date: 29 July 1937
• Citation: 176 So. 38,128 Fla. 848
• Parties: RINER et al. v. STATE.
• Court: Florida Supreme Court

176 So. 38

128 Fla. 848

RINER et al. v. STATE.

Florida Supreme Court, Division A.

July 29, 1937

Rehearing Denied Sept. 3, 1937.

Error to Circuit Court, Polk County; W. J. Barker, Judge.

Hugh Riner and others were convicted of murder in the second degree, and they bring error.

Affirmed.

COUNSEL

Zewadski & Pierce, of Tampa, for plaintiffs in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

Under an indictment charging murder in the first degree, plaintiffs in error were convicted of murder in the second degree and sued out writ of error.

In the brief plaintiffs in error present two questions for our determination, as follows:

'First Question. Where in a first degree murder case the sole issue at the trial was the identity of the accused as being the perpetrators of the holdup and murder, should a verdict of second degree murder be upheld where proof of the identity is unsatisfactory and the verdict is wholly inapplicable to the facts in issue?'

'Second Question. Where the sole issue in a first degree murder case is the identity of the defendants as being the persons who staged the holdup resulting in the murder of a bystander, and the evidence of identity is weak and unsatisfactory, should the State be allowed to introduce photographs and other evidence by a fire arms expert, the purpose of which evidence is to show similarity between test bullets and bullets found at the scene of the holdup, but which evidence shows, both from the photographs and from the testimony of the alleged expert himself, to be wholly unreliable and inconclusive, yet having a strong tendency to unduly influence and prejudice the jury.'

Where the evidence is such that it would have sustained a verdict of murder in the first degree, a verdict and judgment of murder in the second degree will not be disturbed because of the insufficiency of the evidence. Larmon v. State, 81 Fla. 553, 88 So. 471.

The contention is made that evidence establishing the identity of the defendants was too uncertain to be relied upon for a conviction. The direct evidence of identity was by way of identifying the voices of two defendants. That identification may be properly made in such manner has been recognized in this jurisdiction for a number of years. In the case of Mack v. State, 54 Fla. 55, 44 So. 706, 708, 13 L.R.A. (N.S.) 373, 14 Ann.Cas. 78, in an opinion prepared for this court by Mr. Justice Taylor some thirty years ago, it was said: 'As long ago as the year 1660, in the trial of the regicide William Hulet, a witness was permitted to identify the defendant by his voice. 5 Howell's State Trials, 1186, 1187; Henry Harrison's Trial, 12 Howell's State Trials, 834, text 861; Trials of the Threshers, 30 Howell's State Trials, 198. And ever since this early period it has been universally recognized by the courts on this continent and in England as being admissible and legitimate evidence to establish identity. In the case of Commonwealth v. Hayes, 138 Mass. 185, it was held to be competent evidence to support a conviction, where a prosecuting witness identified the defendant...