State v. Hardy
| Decision Date | 01 September 1959 |
| Docket Number | No. A-413,A-413 |
| Citation | 114 So.2d 344 |
| Parties | STATE of Florida, Appellant, v. Virginia HARDY, Appellee. |
| Court | Florida District Court of Appeals |
Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellant.
Wayne E. Ripley, Jacksonville, for appellee.
The appellee was informed against in the Criminal Court of Record for Duval County for unlawfully possessing five gallons of moonshine whiskey. After pleading not guilty to the charge, she filed a motion for a bill of particulars, and larter an amended bill, to require the State to furnish her the 'name, address, telephone number, and size and description of the alleged 'black male', confidential informer, who was alleged to have gone into' the appellee's dwelling house and premises described in the affidavit for search warrant and the search warrant. In the motion appellee also denied that anyone had made a 'buy' from her and she demanded the right to be confronted by the 'black male' who claimed he made a buy. The court denied the motion. The appellee with leave of court waived trial by jury, and the court then tried the case without a jury and entered a verdict of guilty of the offense charged. The evidence at the trial was, we hold, sufficient to support this verdict.
The appellee filed a motion for new trial on the ground that the court erred in denying her motion for bill of particulars and in not requiring the State to furnish to her the requested information concerning the 'black male' before requiring her to proceed to trial. In her motion she claimed that the search warrant was predicated upon an affidavit made by a fictitious person, that no alleged 'buy' was made, and that the search warrant was introduced before the court as evidence of a sale made in her home, yet she was deprived of her rights to be confronted by the 'black male' and to cross-examine this fictitious confidential informer.
The Criminal Court of Record, upon the hearing on this motion for new trial, granted it for the reasons as stated in its order:
'The Court did not require the State to disclose the name, identity and address of the alleged confidential informer, in accordance with the ruling of the Supreme Court of the United States in the case of Albert Roviaro v. United States of America, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, and cases cited in said opinion.'
The State has filed the present appeal from this order.
We have examined the opinion in the Roviaro case referred to in the quoted order, the cases cited in that case, and other authorities, and do not think they support the order appealed from.
In the case of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, the petitioner for writ of certiorari, Roviaro, was convicted in a federal district court of a charge of violating a federal narcotics act by having sold heroin to one 'John Doe' and transported it knowing it to be unlawfully imported. Before and during the trial he sought to learn the identity of 'John Doe', which the government refused to disclose on the ground that John Doe was an informer. The United States Court of Appeals upheld the conviction, holding that the district judge had not abused his discretion in denying Roviaro's request for disclosure of the informer's identity, as reported in 7 Cir., 229 Fl.2d 812. The United States Supreme Court reversed the judgment, holding that the applicability of the privilege claimed by the government depends on the circumstances of each case and that the privilege was not applicable to the facts before them. The Court pointed out that this was a case in which the government's informer was the sole participant, other than the accused, in the transaction charged; that the informer was the only witness in a position to amplify or contradict the testimony of government witnesses.
The facts in the Roviaro case are basically distinguishable from those in the instant appeal. Here the appellee was tried on a charge of unlawful possession of five gallons of moonshine whiskey, not on a charge of an unlawful sale of moonshine whiskey to the informer or anyone else. There is no showing here that the informer was a participant in the transaction charged or that he would be a material witness at the trial. The Roviaro case cannot be considered as a governing precedent in this case, and the trial judge erred in granting a new trial on the basis...
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