Thomas v. State
| Citation | 183 So.2d 297 |
| Decision Date | 22 February 1966 |
| Docket Number | No. 65-578,65-578 |
| Parties | Percy Lee THOMAS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Robert L. Koeppel, Public Defender, and Phillip A. Hubbart, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.
Before HENDRY, C. J., and CARROLL and SWANN, JJ.
The appellant, Percy Lee Thomas, [defendant below], appeals from a judgment entered after a non-jury trial in which he was convicted of assault with intent to commit robbery.
The essential facts on appeal are that about 8:00 P.M. one evening Mr. Ray Lawson, a man in his late seventies, settled down in the living room of his residence to read the evening paper. Mr. Lawson's housekeeper heard a noise at the door and opened it, thinking it was a girlfriend that she was expecting for a visit. The defendant Thomas was standing outside, wearing a black handkerchief about his face, a turban on his head, and black gloves. The housekeeper asked, 'What do you want?', and the defendant said, , and followed her into the living room. The defendant said several times to Lawson, The defendant remained in the house from five to ten minutes and the housekeeper testified that there was no weapon of any kind in the defendant's hands. At one point, Mr. Lawson unsuccessfully attempted to strike the defendant, but was shoved away by him. Aside from this, there was no roughness by the defendant while in the house, and Mr. Lawson remained seated most of the time.
Both Mr. Lawson and his housekeeper testified that they were not frightened of the defendant at any time and that they had the situation well under control. When the housekeeper tried to run outside, the defendant said, Mr. Lawson's granddaughter ran upstairs to call the police, and the defendant finally ran out of the house, after being told repeatedly by everyone to leave. When the police apprehended the defendant a short time thereafter, a knife was found on his person. He was then returned to the Lawson home and identified as the intruder. The following day the defendant told the police substantially the above stated facts.
Defense counsel's oral motion for a directed verdict at the close of the State's case and at the close of all evidence was denied, as was a motion for new trial. The defendant was convicted and sentenced to ten years in the State penitentiary and this appeal followed.
The defendant Thomas contends that there is a fatal variance between the information which charges an assault with intent to commit robbery by force and violence with a knife, and putting the victim in fear, and the proof which did not establish that the crime charged was committed 'with a knife' and by putting the victim, Lawson, 'in fear'; and that the State failed to establish a prima facie case of assault with intent to commit robbery because there was no evidence that the defendant intended to rob the victim when he committed the assault and battery upon him.
The defendant Thomas concedes, however, that the proof does establish that he committed a trespass on Lawson's property and that he committed an assault and battery on Lawson.
In arriving at a determination of whether it is necessary to prove the 'use of a knife' as an essential element of the charge of assault with intent to commit robbery, we are governed by the case of Nelson v. State, Fla.App.1963, 157 So.2d 96. There the defendant was charged and convicted of an assault with intent to commit robbery by the 'use of a gun' and by putting the victim in fear. The evidence there failed to show a display of the pistol or an expressed threat to Willie Mae Ferguson, the victim. On appeal, it was contended that there was a fatal variance between the information and the evidence. This court, in affirming, said:
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If the 'use of the gun' was not an essential...
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