Talley v. State

• Decision Date: 18 June 1948
• Citation: 160 Fla. 593,36 So.2d 201
• Parties: TALLEY v. STATE.
• Court: Florida Supreme Court

36 So.2d 201

160 Fla. 593

TALLEY v. STATE.

Florida Supreme Court

June 18, 1948

Rehearing Denied July 20, 1948.

Lonnie Lee Talley was convicted of rape and he appeals.

Appeal from Circuit Court, Duval County; Miles W. Lewis judge.

A. W Graessle, Jr., of Jacksonville, for appellant.

J. Tom Watson, Atty. Gen., and Ernest W. Welch, Asst. Atty. Gen for appellee.

CHAPMAN Justice.

The appellant, Lonnie Lee Talley, was indicted by a grand jury of Duval County, Florida, for the crime of rape alleged to have been committed in said County on July 22, 1947. On September 22, 1947, he was placed upon trial and a jury, after hearing the evidence of the parties and instructions of the Court, rendered a verdict of guilty as charged. A motion for a new trial was made and by the trial court denied, when the appellant was adjudged guilty of said crime and the death penalty imposed by an appropriate sentence. An appeal has been perfected here.

The testimony adduced discloses in substance that the offense was committed about 2:00 or 2:30 P. M. on July 22, 1947, in the rural settlement of the Arlington section of Duval County, about seven or eight miles distant from the court house in Jacksonville, shortly after the prosecutrix, a housewife, had completed the family washing, returned to her home and was rocking her two year old baby to sleep sitting on the front porch of her rural home. The appellant, driving a 1940 or 1941 Chevrolet truck, passed the home and asked direction to the B & M Poultry Farm, and after being advised that she did not know the location of the poultry farm the appellant drove away and returned some few minutes thereafter and stopped his truck for the second time near the prosecutrix's home and made inquiries of her about a road branching off from the one he had been traveling. He asked for a glass of water and was directed to go to the pump in the rear of the house. He was told by the prosecutrix that the husband was away from home and she was alone with her baby. The pump had to be primed and she gave the appellant a glass of water and after handing it to him turned her back to return when the appellant attacked her, and after considerable struggling between them, the appellant threw her upon a bed and accomplished his purpose.

The prosecutrix attempted to get the tag number on the truck but found it bent from the top to the bottom and she could not read the number. The officers were called and she gave them a description of the assailant and of the truck driven by him, which resulted in his arrest by a policeman of the City of Jacksonville on the following Friday, July 25, 1947, when driving the truck about said city. He was placed in a line of about six men by the officers and the prosecutrix viewed each of the six men when in the line and pointed out the appellant as her assailant. The appellant was identified by several others when in line but on separate occasions. The truck was identified as the one driven by the appellant when the prosecutrix was assaulted. It was the property of Excelsior Mills Corporation, 118 East 14th Street, Jacksonville, with whom the appellant had been employed as a truck driver and other duties since the Fall of 1946. The appellant's defense in the court below was that of an alibi. He was 24 years of age, married and had about 10 or 12 months' overseas duty in World War II.

It appears by the record that the appellant was at the home of Mrs. Roxie Cason in the Arlington section on the afternoon of July 22, 1947, and asked for directions to the B & M Poultry Farm and later got from her a pair of pliers with which to work on his truck and Mrs. Cason became frightened at the appellant's conduct and ran back in her home and closed the door. The truck she described as driven by the appellant was a Chevrolet green panel truck, 1939, 1940, 1941 model. It is not disputed that the truck was the property of Excelsior Mills Corporation and the appellant was hired to drive the truck in July, 1947. The witness identified the appellant in the line at the jail as the driver of the truck in the Arlington section on the afternoon the alleged crime was committed.

The State produced the second lady witness, who lived between Moncrief and Rebault Drive sections of the City of Jacksonville on July 17, 1947. She testified that the appellant passed her home on the afternoon of July 17, 1947, driving this Chevrolet truck and stopped in front of the home and asked the witness for a glass of water and the witness got the water and took it to him on the front porch. When she opened the door to give him the water he forced the door open and went into the home and made several efforts to get hold of her but she fought him off and screamed for help and the appellant became frightened and left. The witness identified the appellant in the line at the jail as the driver of the truck and the one who attacked her in her home on the afternoon of July 17, 1947.

The third lady witness for the State testified that about 4:30 or 5:00 o'clock P. M., July 23, 1947, near her home on May Street in the City of Jacksonville the appellant was sitting in the Chevrolet truck and as the witness passed the truck--then parked along the sidewalk--he made an indecent proposal to her and then drove away in the truck. The witness identified the appellant in a line of six men at the jail on the following Friday morning, July 25, 1947.

The fourth lady witness for the State testified that the appellant, on the 24th day of July, 1947, when driving the 1939 Chevrolet truck down Canal Street in a thinly populated section of the city, accosted her and made an indecent proposal to her and some advances but she was successful in fighting him off, when the appellant drove away in the truck. The witness later identified her assailant in the line at the jail. The fifth lady witness called by the State testified that the appellant attacked her near her home and was driving the 1939 Chevrolet truck at the time. She identified the appellant when seen in the line at the jail. Thus from the 17th of July until the 24th of July, 1947, it appears from the testimony that five assaults were made by the defendant-appellant on women in the Jacksonville area.

It appears from the record that the defendant on approaching a possible victim would ask her for a glass of water, or request information about the roads, or ask for pliers or some other tool feigned to be needed in the adjustment of the motor or truck, with the usual question, 'Is your husband at home?' One witness saw him fold the truck tag to prevent her getting the tag number and the prosecutrix in the case at bar made an effort to get the tag number of the truck driven by the defendant at the time she was assaulted by the defendant, but found the tag folded, which prevented her obtaining it. From this testimony it is reasonable to infer as follows: (a) that the defendant-appellant intended to criminally assault each of his victims; (b) his scheme, plan or method of approaching each of his possible victims are shown to be similar to those employed when contacting the prosecutrix in the case at bar; (c) the identity of the defendant is established by height, color, weight, wearing apparel and the 1939 or 1940 Chevrolet truck driven on the occasion of each attack.

Counsel for the defendant below, during the progress of the trial objected to the admission in evidence of the testimony of attacks alleged have been made on other women supra on the ground that each of the alleged attacks was a separate and wholly independent offense for which the accused was not then on trial and it was impossible for him defend against these collateral offenses when on trial under the present indictment and that the testimony was highly prejudicial. It is contended on this appeal that the judgment should be reversed because of the admission of the challenged testimony. It is well established law...