Williams v. State, A-117

• Decision Date: 01 April 1958
• Docket Number: No. A-117,A-117
• Citation: 101 So.2d 877
• Parties: Arthur John WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 877

101 So.2d 877

Arthur John WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. A-117.

District Court of Appeal of Florida, First District.

April 1, 1958.

Rehearing Denied April 29, 1958.

Wayne Ripley, Jacksonville, for appellant.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.

WIGGINTON, Judge.

This is an appeal from judgment of conviction entered by the criminal Court of Record of Duval County.

Appellant was charged in two counts of an information, tried and convicted of an attempt to break and enter with the intent to commit the felony of grand larceny, and with possession of burglarious tools. Upon entering its judgment thereon, the trial court sentenced defendant to three years in the state prison on count one, being the attempt to break and enter, and deferred sentence as to count two. Among other things, this appeal (1) attacks the trial court's failure to order a mistrial because of the alleged misconduct of one of the jurors; (2) questions the sufficiency of the evidence to sustain the verdict and judgment, the defendant's motion for directed verdict and for a new trial on this ground having been denied; and (3)challenges the trial court's authority to defer sentence on count two from day to day and term to term.

The juror in question allegedly failed to give correct answers to certain questions propounded by defendant's counsel on voir dire. If the colloquy between defendant's counsel and the court could be, by any generous interpretation, considered a motion for mistrial, we find that such motion was waived. The record shows that the matter of the juror's alleged misconduct was brought to the court's attention during the progress of the trial, whereupon testimony of witnesses was heard in the absence of the jury. Thereafter, and before the court had an opportunity to rule on the motion, defendant's counsel requested the court to 'Let's go ahead, Your Honor. And may it please the court witnesses are in the courtroom and they were put under the rule.' Having thus waived his motion, defendant cannot now be heard to challenge the trial court's failure to grant a mistrial.

Appellant further contends that the evidence fails to prove an attempt to break and enter with the intent to commit a felony, to wit: to take, steal and carry away property the value of which was $50 or more. It appears from the record that appellant was apprehended during the early morning hours, before day, by police who had been summoned to the scene by an automatic burglar alarm. Appellant was discovered crouching beneath a truck parked some eight feet from the rear entrance of a building housing a grocerymarket to which the burglar alarm was attached. He had in his possession a crowbar and a loaded pistol. The door of the building showed signs of having been tampered with, and bore marks that could have been caused by a crowbar. The evidence clearly established that the building had not been entered. One of the arresting officers testified that appellant, upon being taken into custody, confessed his intention to steal some cigarettes from the building in question. The record stands mute as to whether there were in fact any cigarettes in the building, and, likewise, as to the value of the contents thereof. The only evidence concerning this fact was adduced by the store manager who testified that the building contained 'Groceries. Full of meats, sugar, flour, canned goods.'

In Turknett v. State ¹, the defendant was convicted of an attempted breaking and entering with the intent to steal money, goods or property valued at $50.00 or more. As in the case at bar, the accused was apprehended before he actually entered the building and there was no proof as to what property the accused had the...