Stratton v. State

• Decision Date: 09 February 1955
• Parties: Bryon Elliott STRATTON, alias Curtis A. Elliott, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 865

77 So.2d 865

Bryon Elliott STRATTON, alias Curtis A. Elliott, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida, Division A.

Feb. 9, 1955.

Robinson, Roark & Hopkins, Pensacola, for appellant.

Richard W. Ervin, Atty. Gen., and Bart L. Cohen, Asst. Atty. Gen., for appellee.

SEBRING, Justice.

This is a companion case to Stratton v. State, Fla., 77 So.2d 864, in which was involved a conviction for breaking and entering with intent to commit petit larceny. The judgment appealed from is one entered upon a jury verdict finding the appellant guilty of assault with intent to rape and an attempt to kidnap.

As stated in the companion case, the appellant Stratton was employed in a music store owned and operated by a husband and wife in Pensacola, Florida. In the early morning of April 10, 1952, while the husband was out of town, their residence was broken into and entered. The wife, who was sleeping in the house at the time, testified that the intruder carried her 8-year old daughter from her bed on the second floor of the residence but dropped her and ran when she, the mother, was awakened by the child's screams as she was carried down the stairs. While the mother saw the form of the intruder descending the staircase with her daughter in his arms, and described him as a 'man slightly taller than I was and * * * slender and * * * very light and fast on his feet,' she could not positively identify the appellant as the man; and therefore the prosecution depended primarily upon the confession and voluntary plea of guilty in the companion case above decided to establish that the intruder was in fact the appellant Stratton. Nickels v. State, 90 Fla. 659, 685, 106 So. 479; Thomas v. State, 132 Fla. 78, 84, 181 So. 337, and Kennedy v. State, 140 Fla. 124, 191 So. 193.

Appellant, in the course of his employment or professional affiliation with the music store in question, had given lessons in voice and piano to his employers' daughter and a neighbor's child for a period of several weeks in a studio room at their residence, and on these and later occasions became friendly with the family boxer dog. He subsequently continued the daughter's lessons at the store. He claimed to have been present in his employers' home on other occasions for the purpose of helping the wife in the art of German cuisine, but she denied this and said he simply delivered to her and her husband, unsolicited, certain dishes prepared by him in that line.

His employment record at the store had been somewhat erratic, his employer's wife reporting that on the occasions when she assisted in the store he either gave no excuse at all for failures to be on hand for lessons, or reported such things as having fallen down stairways or otherwise injured himself. By innuendo in his own testimony he infers that unwelcome attentions from her had prompted his absences from the store. With respect to the ultimate termination of the services of the appellant, his employers denied his assertion that he was discharged. They testified in regard to this point that, although no accusations he simply failed to show up for work after the occurrence of the crime involved in this appeal.

As appears from the opinion in the companion case, several days following the entry into the home in question, the appellant, who testified that a friend had told him the police wanted to question him, called the station to verify...