San Fratello v. State, 3405

• Decision Date: 05 June 1963
• Docket Number: No. 3405,3405
• Citation: 154 So.2d 327
• Parties: Joseph G. SAN FRATELLO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 327

154 So.2d 327

Joseph G. SAN FRATELLO, Appellant, v. STATE of Florida, Appellee.

No. 3405.

District Court of Appeal of Florida, Second District.

June 5, 1963.

John S. Berry, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

SMITH, Judge.

Joseph G. San Fratello was informed against, found guilty by a jury and sentenced for the crimes of foregery and uttering a foreged instrument. We affirm.

Upon returning to the United States, an Air Force sergeant started on a drinking spree in Tampa. He met two women who managed to purloin from him a number of travelers checks which the sergeant had not endorsed. The women testified that they had delivered the travelers checks to San Fratello on the agreement that he would arrange to get the checks cashed and split the proceeds with them. The evidence shows that San Fratello's co-defendant, Gullo, cashed one of the travelers checks at a Tampa bank.

San Fratello first contends that the court erred in denying his motion to quash the Information on the grounds (1) that the Information did not have copied upon it in printed words the travelers checks in question, but instead recited that a photostatic copy was attached and made a part thereof; and (2) that the photostatic copy attached was illegible. The original Information has been certified to us pursuant to Florida Appellate Rule 6.9, subd. e, 31 F.S.A. We find that the photostatic copy attached was not so illegible as to make the Information so vague that the defendant would be embarrassed in preparing his defense or that the defendant might be subjected to a new prosecution for the same offense. The vagueness of the copy could have been corrected by a bill of particulars, but no such motion was made. See State v. Bruno, Fla.1958, 107 So.2d 9.

In the course of the presentation of the State's case, detective Nail testified that, on the day of the alleged crimes he was driving an automobile past the front of the Central Bank of Tampa; that he was driving at a rate of about twenty miles per hour; that he did not stop; that he saw the defendant, Joseph San Fratello, sitting in the front right-hand seat of an automobile parked directly in front of the bank; and that he saw another person sitting in the car with San Fratello, but that he did not then know the other person. Later in the course of presenting the State's case, evidence was developed to the effect that this other person was to co-defendant, Gullo; and that Gullo left the automobile, went into the bank and received cash in exchange for the travelers check alleged to have been forged and uttered. The foregoing evidence was vital to the prosecution, for the proof of identity of San Frantello and the proof that he was with Gullo at the approximate time that the alleged crimes were committed were necessary elements of the State's case. These facts were never admitted by the defense; nor were they proven otherwise. On cross-examination, defense counsel questioned detective Nail closely as to whether or not he could, and in fact did, recognize San Fratello. In the course of this intensive cross-examination, the detective was asked if he stopped next to Mr. San Fratello's car, to which he replied: 'No.' He was then asked: 'You had no occasion to stop, did you?' Detective Nail replied: 'I recognized him. I had had occasion to meet him on other circumstances when I arrested him for armed robbery.' At that point, San Fratello's counsel moved for a mistrial on the grounds that: '* * * this officer who has had seven and a half years' experience with the Tampa Police Department in the Detective Bureau has come here before a jury and has blurted out something that was absolutely unasked for or uncalled for. He has made a statement before this jury which can do nothing but inflame the minds of the jury and prejudice this defendant in the eyes of the jury. I don't care how much instruction this Court gives to this jury, it connot be erased from their minds. * * *' The court denied the motion for mistrial and instructed the jury to disregard the answer given by the witness in response to the question by defense counsel. The court stated further that detective Nail's statement was highly improper and should not be considered by the jury in any manner in this case.

The defendant contends that the detective's remark was so harmful and prejudicial to the defendant that the court erred in denying his motion for mistrial, citing Mann v. State, 1886, 22 Fla. 600; Roberson v. State, 1898, 40 Fla. 509, 24 So. 474; and Boyett v. State, 1928, 95 Fla. 597, 116 So. 476. It is noted that in each of the cases cited, it was held that the trial court erred in admitting into evidence, during the direct examination by the State and over objection of the defendant, the testimony of the State's witness that the accused had committed other crimes not connected with the offense for which he was being tried. The distinctions here are obvious when it is noted that (1) that statement objected to in the case at bar was made on cross-examination, defense counsel testiny the State's witness as to his ability to identify the defendant under the circumstances; (2) the court below struck the reply and instructed the jury to disregard it; and (3) the witness here did not state that the defendant had been convicted or that he committed the other crime, but only that the witness recognized the defendant because he had previously arrested him for the crime of armed robbery. In addition, the principles enumerated in the foregoing decisions have been materially modified in Talley v. State, 1948, 160 Fla. 593, 36 So.2d 201, Singer v. State, Fla.1959, 109 So.2d 7; and Johnson v. State, Fla.1961, 130 So.2d 599. The exclusionary rule that evidence of arrest, incarceration or conviction for other offenses in not admissible against an accused is not one of such unqualified application as to prohibit absolutely and for every purpose the receiving of any evidence which may reveal the existence of such fact. The general exclusionary rule...