Shaw v. State, I-329

• Decision Date: 18 April 1968
• Docket Number: No. I-329,I-329
• Citation: 209 So.2d 477
• Parties: Ronald Earl SHAW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 477

209 So.2d 477

Ronald Earl SHAW, Appellant, v. STATE of Florida, Appellee.

No. I-329.

District Court of Appeal of Florida, First District.

April 18, 1968.

Rehearing Denied May 17, 1968.

As Revised June 13, 1968.

Richard W. Ervin, III, Public Defender; John D. Buchanan, Jr., Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., for appellee.

SPECTOR, Judge.

This is an appeal from a judgment of conviction on a charge of larceny of an automobile.

While appellant was an inmate at Apalachee Correctional Institute, he escaped from a work crew to which he was assigned at the Florida State Hospital at Chattahoochee, Florida. The automobile that he was found guilty of stealing was parked at the hospital by an employee on the day of the theft.

The evidence on which the State relied at trial to show appellant's guilt was his exclusive possession of the car on the same day it was stolen. He was observed in control and possession of the car by Mr. John Howell, the owner of a country store and filling station on the highway to Bainbridge, Georgia, where he had stopped to ask for directions. Mr. Howell's suspicions were aroused by appellant's appearance, and he called the sheriff's office in Bainbridge setting off a chain of events leading to appellant's apprehension.

Upon receiving a description of the vehicle involved, Deputy Sheriff Phillips of Bainbridge, Georgia, proceeded south toward where the vehicle was seen in possession of appellant and passed it heading north toward Bainbridge. Phillips immediately turned his car around in the middle of the road to give chase and at that time the car fitting the description was stopped on the side of the road and the driver, leaving the motor running, abandoned it and headed for the woods. The track dogs were called in an gave chase to where the appellant was apprehended several hours later. While the Georgia Deputy was unable to identify the appellant as the driver of the stolen vehicle, that was accomplished at the trial by the evidence given by Mr. Howell, The service station owner. Moreover, the evidence reflects that the tracks leading from the car which were followed by the dogs were readily identifiable as the tracks made by shoes regularly issued to inmates at Apalachee Correctional Institute.

On appeal, the sole point relied upon by appellant for reversal is that the giving of an instruction on the unexplained possession of recently stolen property amounted to a comment by the court on the appellant's failure to testify. The text of the questioned instruction is as follows:

'Gentlemen, it is also proper for you to consider the unexplained possession of recently stolen property, if there should be such evidence of that. The unexplained possession of recently stolen property may raise an inference that the one having possession was the one who stole the property.'

In Romanello v. State, 160 So.2d 529 (Fla.App. 1st 1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1541, 14 L.Ed.2d 436, this court held that an instruction similar to the one here questioned does not amount to a comment on defendant's failure to take the stand.

In McClain v. State, 185 So.2d 707 (Fla.App.2d 1966), cert. denied, Fla., 192 So.2d 498, the court, considering the propriety of a similar instruction in light of the Fifth Amendment to the United States Constitution and Section 12, Declaration of Rights of the Florida Constitution, F.S.A., held at page 708 of 185 So.2d:

'This proscription (constitutional provisions aforesaid) prohibits a person in a Criminal case from being compelled to be a Witness against himself. It does not go so far as to prohibit a jury from considering as circumstantial evidence the possession of stolen property, for which possession the defendant at a time Prior to trial, had offered no explanation.'

Quoting with approval from this court's opinion in Romanello v. State, supra, the McClain opinion continued at page 708:

"* * * The 'explanation' of possession thus referred to is that given by the accused when he is first under duty to speak after such recently stolen property is discovered in his possession. There is no burden upon the defendant to take the stand and explain such possession at the trial * * *."

We have examined the cases relied on by appellant and find them to be clearly distinguishable from the case at hand as well as the cases we have cited above in this opinion. It has long been the law that a showing by the evidence that the defendant had in his possession property that had recently been stolen was a proper circumstance to be taken into account by the jury, together with all the other evidence and circumstances, in determining the fact that defendant did the stealing. Such a showing does not as a matter of law stand as proof of defe...