Sciortino v. State
| Decision Date | 14 October 1959 |
| Docket Number | No. 846,846 |
| Citation | 115 So.2d 93 |
| Court | Florida District Court of Appeals |
| Parties | Anthony SCIORTINO, Appellant, v. STATE of Florida, Appellee. |
Howard Garrett, Garrett & Garrett, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., Edward S. Jaffry and Eugene P. Spellman, Asst. Attys. Gen., for appellee.
The appellant was tried on an information charging him with aiding and assisting in the setting up, promotion and conducting of a lottery, with possession of bolita paraphernalia and with possession of bolita tickets. The jury found the appellant-defendant guilty under the first, second and third counts of the information, but a mistrial was declared as to the fourth count. He was adjudicated guilty and sentenced to serve three years in the state prison on the first count of the information.
The appellant in this case was convicted on counts 1, 2 and 3 of the information but was only sentenced on count 1 of the information which charged that he unlawfully aided and assisted in the setting up, promoting, and conducting of a lottery for money, or that appellant was unlawfully interested in and connected with said lottery in that the appellant engaged in the business of selling shares and interest in said lottery.
The testimony offered by the State was basically as follows:
A deputy sheriff entered the place of business owned by the appellant, accompanied by another deputy. A search of the premises disclosed that behind the bar there was a telephone with pencils and pads on the shelf and near this shelf was a match box containing a white slip with numbers on it. At the time these items were found, the appellant admitted that the numbers on the white sheet in the box were lottery numbers and that the box and ticket contained in the box belonged to him. Another deputy sheriff testified as an expert that the ticket contained in the box was a lottery ticket.
The above evidence constituted all of the proof offered in the case with the exception of certain admissions made by the appellant when the two deputies, with the defendant, encountered the Sheriff of Hillsborough County at the foot of the stairs on their way to the sheriff's office. The deputies informed the sheriff, in the presence of appellant, that they had made a case against appellant for conducting a lottery and for possession of bolita, whereupon Sheriff Blackburn stated to the appellant, 'Tony, I thought you had gone out of the blooming bolita business.' The appellant retorted, 'Well, I've only been back in business a couple of weeks.' Shortly thereafter, appellant informed the deputies that he would confess to possession but would not confess to conducting a lottery. One of the deputies further testified that, 'Mr. Sciortino stated that he already had one conviction on lottery law violation against him and, therefore, that he would not give a statement on conducting.'
The appellant states the following points:
1. There was a total absence of proof of the corpus delecti of the offense of aiding and assisting in the setting up, promoting and conducting of a lottery, by selling shares therein, as denounced by section 849.09(1)(d).
2. The defendant, while being held in custody in violation of section 901.23 was forced to give evidence, and the alleged admissions against interest made by the defendant are therefore not admissible.
3. The defendant was entitled to a mistrial following the propounding of this question to a state's witness by assistant County Solicitor William C. McLean: 'Have you had occasion to ever place him under arrest for bolita before?', notwithstanding that the judge sustained the defendant's objection to such question and instructed the jury to disregard the same.
Since we shall rule against the appellant on the last two questions, we do not deem it necessary to discuss them. We must sustain the appellant, however, as to Point 1 on the basis of a complete absence of any proof of the corpus delicti.
In criminal prosecutions the corpus delicti, or the fact that a crime has been committed, is an important element in every prosecution. This term, as applied to any particular offense, means that the state must establish that the specific crime charged has actually been committed. The corpus delicti is made up of two elements: (1) that a crime has been committed, as for example, a man has been filled or a building has been burned; and (2) that some person is criminally responsible for the act. It is not sufficient merely to prove the fact that the person died or the building burned, but there must be proof of criminal agency of another as the cause thereof. 9 Fla.Jur., Criminal Law, § 3, Meaning of Corpus Delicti.
It has been contended that confessions of a person accused of a crime are evidence of the highest character, on the theory that no person will acknowledge that he has committed a grave crime unless he is actually guilty, and that a person will not make an untrue statement against his own interest. However, the courts have repudiated this theory, recognizing that persons have confessed to crimes which they did not commit, in the hope of averting punishment. Consequently, it is now the great weight of authority that confessions of parties charged with crime should be acted on by courts and juries with great caution, especially where the party is under arrest when the confession is made. Indeed, an extrajudicial confession of guilt, standing alone, will not authorize a conviction on a criminal charge, even though believed by the jury. 13 Fla.Jur., Evidence, § 423.
The text-book writers and the decisions of the various jurisdictions reflect considerable differences relative to the proof of corpus delicti, the necessity of proving it beyond a reasonable doubt, and whether admissions or confessions may be received as an aid in establishing the corpus delicti.
Wharton's Criminal Evidence, 12th Ed., Anderson, Vol. 1, sec. 17, page 48, states:
See the case of Holland v. State, 39 Fla. 178, 22 So. 298.
Underhill's Criminal Evidence, 5th Ed., Herrick, Vol. 1, chapter 4, § 35, page 46, gives an excellent discussion of the principles of corpus delicti. Beginning on page 47, it is stated:
'It is sometimes said that corpus delicti also includes the criminal agency of the accused, but this makes the corpus delicti and same as the whole of the charge, and it is more accurate to say that it includes only the end result and the criminal agency of some one but not of any particular person.
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' § 36. Proof of corpus delicti by confessions and admissions.--An extra judicial confession or admission of the accused is not sufficient standing alone, to prove the corpus delicti. Such a confession or admission may be considered with other testimony, however, and in most jurisdictions the corpus delicti is established when the other testimony, together with the confession, proves the corpus delicti beyond a reasonable doubt. The other evidence need not, independent of the confession, establish the corpus delicti beyond a reasonable doubt. In other words, a confession or admission must be corroborated, and the corroboration which is required must refer not merely to facts supporting the confession but to facts concerning the corpus delicti. Mere corroboration of the fact of confession in insufficient.
'The evidence required to establish the corpus delicti, in addition to that furnished by the confession, need not be wholly independent of the confession, and it need not connect the defendant with the crime. Where the evidence as sufficient to show that the crime has been committed, or where there by any evidence dehors the confession in proof of the corpus delicti, the confession or admission is generally admissible. It has been held that slighter evidence is needed to establish the corpus delicti when a confession is present.
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' § 37. Circumstantial evidence to prove corpus delicti--In general--In homicide cases.--The corpus delicti may generally be proved by circumstantial evidence, as long as such evidence measures up to the standards already discussed. Such proof must be the most convincing and satisfactory proof that is compatible with the nature of the case, but each particular circumstance need not be conclusive in itself.
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Wharton's Crimial Law and Procedure, Vol. 1, Anderson, § 66, at page 144, states:
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