Slaughter v. State

• Decision Date: 25 September 1974
• Docket Number: Nos. 43490,43500 and 43501,s. 43490
• Citation: 301 So.2d 762
• Parties: Gary SLAUGHTER et al., Appellants, v. The STATE of Florida, Appellee. Eddie SLAUGHTER, Appellant, v. The STATE of Florida, Appellee. Willie Charles HARRIS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 762

301 So.2d 762

Gary SLAUGHTER et al., Appellants, v. The STATE of Florida, Appellee.

Eddie SLAUGHTER, Appellant, v. The STATE of Florida, Appellee.

Willie Charles HARRIS, Appellant, v. The STATE of Florida, Appellee.

Nos. 43490, 43500 and 43501.

Supreme Court of Florida.

Sept. 25, 1974.

Phillip A. Hubbart, Public Defender, Mark King Leban, Asst. Public Defender, Louis R. Beller, Miami Beach, and Allen L. Jacobi, Coconut Grove, for appellants.

Robert L. Shevin, Atty. Gen., and Enoch J. Whitney, Asst. Atty. Gen., for appellee.

McCAIN, Justice.

These consolidated appeals are before the Court to review the order of the Circuit Court in Dade County denying defendants' motion to dismiss on the grounds that Chapter 40, Florida Statutes and Section 833.04, Florida Statutes, are unconstitutional. We have jurisdiction pursuant to Article V, Section 3(b) (1), Florida Constitution.

The defendants were charged with conspiracy to commit arson and arson of a school that was closed by the school board due to the poor physical condition of the structure. The day before the incident giving rise to the criminal charges, the defendants participated in a peaceful demonstration for the reopening of the school to avoid the bussing of black children to other schools. The testimony at trial revealed that in the early morning hours of May 20, 1970, someone threw several beer bottles containing gasoline and plastic strips through a window of a classroom of Dorsey Junior High School resulting in some fire damage.

At trial, the jury returned a verdict of guilty as charged as to all defendants, and the Court adjudged the defendants guilty and sentenced them accordingly.

The defendants, appellants herein, have asserted eleven points on appeal, with their main thrust directed toward the first two points, which deal with the unconstitutionality of the aforementioned statutes. The remaining nine points, in pertinent part, are as follows:

(3) Whether the trial court erred in refusing to allow the defendants to propound questions to the jury on Voir dire regarding racial prejudice thereby denying the defendants due process of law.

(4) Whether the trial court erred in denying defendants' motion for judgment of acquittal on the arson count where the evidence was insufficient as a matter of law in that the State failed to prove ownership of the property in question.

(5) Whether the court erred in denying defendants' motion to exclude a material state's witness where the State did not provide his name on its list of witnesses pursuant to Rule 3.220, thus denying defendants a fair trial.

(6) Whether the court erred in denying the defendants' motion for severance where the evidence against one defendant was so prejudicial as to the others as to deny them a fair and impartial trial and due process of law.

(7) Whether the trial court erred in admitting over defense objections State's Exhibit 21 depicting incendiary devices where the admission of said exhibit prejudiced the jury and deprived the defendants of a fair trial.

(8) Whether the trial court erred in overruling the defendants' objections to testimony elicited by State's witnesses which materially varied from the information and the bill of particulars supplied by the State, thus surprising the defendants in the preparation of their defense and denying them a fair trial.

(9) Whether the trial court erred in denying defendants' motion for mistrial based on the prosecutor's question to defendant Featherston which revealed a prior federal conviction and the basis for that conviction, where said question resulted in a gross violation of the defendants' rights to a fair trial, and (a) violated the rule that the charges upon which a prior conviction are based may not be pursued; and (b) violated the Williams rule prohibiting similar crimes evidence not within any exception to the rule.

(10) Whether the trial court erred in repeatedly curtailing defendants' constitutional rights to confront and cross-examine the witnesses against them thus denying them their rights of confrontation and fair trial as guaranteed by the Sixth and Fourteenth Amendments.

(11) Whether the trial court erred in denying defendants' several motions for mistrial predicated upon (1) four prejudicial questions posed by the prosecutor; (2) an indirect comment made by a defendant on the failure of other defendants to testify.

Appellants state as their first point on appeal:

'Whether the court erred in denying defendants' motion to dismiss on the ground that Florida Statute § 833.04, the conspiracy statute under which the defendants were charged, is unconstitutional on its face and denies the defendants' rights under the First and Fourteenth Amendments to the United States Constitution.'

The trial judge ruled that said statute was constitutional.

Appellants allege two grounds for holding the statute unconstitutional: (1) the statute is void for vagueness, in failing to adequately define the prohibited conduct, and (2) the statute is void for overbreadth, since the statute lacks the necessity for an overt act to affect the object of the conspiracy.

Section 833.04, Florida Statutes, provides:

'If two or more persons shall agree, conspire, combine or confederate to commit any other felony they shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.'

As to appellants' first ground, a penal statute must be sufficiently explicit to inform those who are subject to its provisions what conduct on their part will render them liable to its penalties. A statute which either prohibits or requires the doing of an act in terms so vague that men of common intelligence must of necessity guess at its meaning and differ as to its application violates due process of law. Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934).

This rule does not require that the language of the statute define with specificity all of the varied conduct prohibited but, rather, this Court has held:

'. . . It is well settled that a criminal statute is sufficiently certain, Though it may use general terms, if the offense is so defined as to convey to a person of ordinary understanding an adequate description of the evil intended to be prohibited.' (Emphasis supplied.) Chesebrough v. State, 255 So.2d 675 (Fla.1971).

Then in Zachary v. State, 269 So.2d 669 (Fla.1972), we again emphasized the same rationale, stating:

'The test of a statute insofar as vagueness is concerned is whether the language conveys sufficiently definite warning as to the proscribed conduct When measured by common understanding and practice.' Id at 670. (Emphasis supplied.)

Also, in Smith v. State, 237 So.2d 139 (Fla.1970), this Court held, quoting from People v. Smith, 36 Cal.App.Supp.2d 748, 92 P.2d 1039, (1939), that:

'To make a statute sufficiently certain to comply with constitutional requirements It is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited. . . .' Id 237 So.2d at 141. (Emphasis supplied.)

In this case, Florida Statute, Section 833.04, refers to any agreement, etc., 'to commit any other felony', and in this posture it can hardly be deemed as undefined or nebulous. Indeed, it would strain the imagination to believe that it would require a super-intellect to conclude that the planning and agreeing to burn a school by throwing what is commonly referred to as a molotov cocktail, is prohibited.

In treating appellants' second ground, overbreadth, since the statute lacks the necessity for an overt act to affect the object of the conspiracy, we note that the appellants rely primarily upon Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). However that case dealt with a federal conspiracy statute which required that the parties must do an 'act to affect' its object in order to establish the crime of conspiracy. Appellants also refer to various other federal cases which also treat a statute requiring an overt act, and are hence inapplicable for that reason.

At common law, it was not necessary to aver and prove an overt act. The statute here under review adopted the common law principle subject only to constitutional or statutory modification.

In State v. Trafficante, 136 So.2d 264 (Fla.App.1961), the Second District Court stated:

'. . . The gravamen of the offense here is the criminal intent. It is required that the evidence adduced prove beyond a reasonable doubt the existence of a corrupt criminal intent. . . . Under the applicable Florida conspiracy statute, section 833.04, there is no requirement that an overt act be alleged or proved.' At 268.

In King v. State, 104 So.2d 730 (1958), this Court stated that:

'Both an agreement and an intention to commit an offense are necessary components of the substantive offense of conspiracy.' At 732.

For these reasons, we conclude that the legislative purpose and intent to preclude the planning of illegal activities has been sufficiently established in this act, and for these reasons Section 833.04, Florida Statutes, is declared to be constitutional.

Turning next to appellants' second point on appeal:

'Whether Chapter 40, Florida Statutes, on its face and as applied violates the defendants' rights to equal protection of the laws, due process of law, and the right to be tried by an impartial jury selected from a representative cross-section of the community, in that veniremen are selected only from among fully qualified electors who have resided in the state for one year and their respective counties for six months and citizens who do not register or who are purged from the voter polls in accordance with Florida Statutes § 98.031 are excluded.'

Most of the federal cases cited by the appellants involve actions where the parties were directly affected by the operations of the statutes such as the deprivation of welfare rights as in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). App...