Wheelis v. State, Y--399
| Decision Date | 03 December 1976 |
| Docket Number | No. Y--399,Y--399 |
| Citation | 340 So.2d 950 |
| Parties | Lance Sidney WHEELIS, and William Edward Hawkins, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
George B. Weires, Miami, and Tyce S. Smith, Springfield, Mo., for appellants.
Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
Wheelis and Hawkins, convicted on a charge of attempted breaking and entering with intent to commit a misdemeanor, complain on this appeal of the trial court's exclusion of certain evidence offered by the defense and of the court's jury instruction concerning the weight to be given testimony by an accomplice. Florida Standard Jury Instructions in Criminal Cases, 2.12(d). We reverse on both grounds.
Wheelis and Hawkins were apprehended at an early morning hour on the roof of a Gainesville grocery. They were equipped with burglary tools and had broken a hole in a concrete block wall. Wheelis was working in the hole when arrested. In the joint trial, Hawkins testified for the defense that he and Wheelis did indeed break into the wall by removing concrete blocks but that 'we never did nothing like that before and we decided we didn't want to go through with it' and so were replacing the blocks when the police arrived. On objection by the State that the crime of attempted breaking and entering was already complete and '(w)hat he attempted afterwards, I believe is irrelevant,' the court excluded the rest of Hawkins' testimony, stating in the jury's absence that
'The crime was consummated when they went up there and started to work.'
Wheelis' similar testimony was proffered and excluded on the same ground.
If the question before the trial court were the sufficiency of the evidence to present a jury question of whether the defendants' efforts had reached far enough toward the desired result to constitute an attempt to commit breaking and entering, we would unhesitatingly affirm the verdict and judgment. Groneau v. State, 201 So.2d 599, 603 (Fla.App.4th, 1967), cert. den. 207 So.2d 452 (Fla.1967). See also Crittendon v. State, 338 So.2d 1088 (Fla.App.1st, 1976). But the question is rather whether Hawkins' testimony of his decision to abandon the criminal purpose and repair the hole was so remote and irrelevant to the charge that the jury could not properly consider it.
We conceive that the evidence was relevant. The jury, properly charged on the elments of criminal attempt, may with good reason have rejected the defense theory of abandonment. But the trial court would not have had authority to instruct the jury that '(t)he crime was consummated when they went up there and started to work.' For '(i)t is elementary that every element of a criminal offense must be proved sufficiently to satisfy the jury (not the court) of its existence.' Henderson v. State, 155 Fla. 487, 490, 20 So.2d 649, 651 (1945); 1 Art. I, §§ 16, 22, Florida Constitution. Of course, no such charge was given the jury in this case. But pretermitting the defendants' proof had the same effect.
Had the arresting officer observed Hawkins and Wheelis chisel the first chip of concrete from the first block, it might truthfully be said, as the trial court stated, that the attempt offense was complete. Yet it does not follow that the prosecution would thereby by disabled to prove that, as the officer observed, the defendants continued to widen the hole. The evidence would have been admitted to show their acts occurring at the same time and place and which were integral to the conduct for which they were prosecuted. Washington v. State, 118 So.2d 650, 653 (Fla.App.2d, 1960); Powell v. State, 208 So.2d 146 (Fla.App.4th 1968); Smith v. State, 311 So.2d 775 (Fla.App.3d, 1975), cert. den. 327 So.2d 35 (Fla.1976); 2 P. Herrick, Underhill Criminal Evidence § 266 (5th ed., 1976 cum. supp.). The same doctrine makes relevant the testimony here excluded. Thin as the defense theory of abandonment was, that was a matter for the jury's determination.
Hawkins having testified, the trial court charged the jury over objection by both Hawkins and Wheelis:
The State has referred us to no reported Florida decision approving the quoted charge in connection with defense testimony by an 'accomplice...
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People v. Graham
...(1970) 130 Ill.App.2d 496, 263 N.E.2d 633, 634-635; People v. Hall (1977) 77 Mich.App. 456, 258 N.W.2d 517, 520-521; Wheelis v. State (Fla.App.1976) 340 So.2d 950, 952; State v. Anderson (1968) 104 N.J.Super. 18, 248 A.2d 438, 439; State v. Reeder (Mo.1965) 395 S.W.2d 209, 210-211; Hazzard ......
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