Young v. State, 942

• Decision Date: 14 November 1967
• Docket Number: No. 942,942
• Citation: 203 So.2d 650
• Parties: Robert E. YOUNG, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 650

203 So.2d 650

Robert E. YOUNG, Appellant, v. STATE of Florida, Appellee.

No. 942.

District Court of Appeal of Florida, Fourth District.

Nov. 14, 1967.

Jack J. Taffer, of Engle & Pollack and Jack J. Taffer, Miami, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, Fred T. Gallagher, Asst. Atty. Gen., Vero Beach, for appellee.

CROSS, Judge.

The defendant-appellant, Robert E. Young, by information was charged with the offense of breaking and entering with the intent to commit a felony, tried and convicted by a jury, adjudged guilty by the court with imposition of sentence. It is from this judgment and sentence the defendant appeals.

The primary thrust of defendant's appeal attacks as erroneous the giving of the following jury instruction:

'I further instruct you, that where it is known beyond a reasonable doubt that a building has been entered and property stolen therefrom, and soon thereafter, the property is found in the possession of the persons charged with entering the building with intent to steal, such possession Unexplained may warrant the inference that such person not only stole the goods, but that they broke and entered the building with intent to steal.' (Emphasis added.)

It is contended that this charge violates both the Fifth and Fourteenth Amendments to the Constitution of the United States and that under the mandate of Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the charge is erroneous because a person is no longer under a legal duty to speak after being placed under police custodial interrogation. Therefore if the defendant desires to stand mute and not explain his possession of stolen property by invoking his Fifth Amendment privilege, he cannot become subject to an inference of guilt at the trial.

The basis of the above charge now under attack springs from English common law which alluded to the principle that possession of property recently stolen if not reasonably explained is a circumstance from which the jury might be justified in drawing the inference that the person in possession had stolen the property or had received the property knowing it to have been stolen. Regina v. Langmead, 169 Eng.Reprint 1459.

Cases are legion throughout the United States adhering to this principle. 1 Wharton Criminal Evidence, § 135, and cases cited therein. Federal courts throughout the land have constantly adhered to the same principle and have allowed instructions to the jury not unlike the instruction under attack. Herman v. United States, 5th Cir. 1961, 289 F.2d 362; Barfield v. United States, 5th Cir. 1956, 229 F.2d 936; Husten v. United States, 8th Cir. 1938, 95 F.2d 168; Levi v. United States, 5th Cir. 1934, 71 F.2d 353.

Florida has long since aligned itself with the majority veiwpoint and allowed such instructions. These decisions have been bottomed upon the statement that the charge does not violate the Fifth Amendment to the Constitution of the United States and Section 12, Declaration of Rihts of the Florida Constitution, F.S.A., which provide in part that:

'No person shall be * * * compelled in any criminal case to be a witness against himself * * *.'

Florida courts have held that this proscription prohibits a person in a criminal case from being compelled to be a witness against himself but does not go so far as to prohibit a jury from considering as circumstantial evidence the possession of stolen property for which possession the defendant at a time prior to trial had offered no explanation. See: Miley v. State, Fla.App.1966, 186 So.2d 299; McClain v. State, Fla.App.1966, 185 So.2d 707; Romanello v. State, Fla.App.1964, 160 So.2d 529, (cert. denied 381 U.S. 915, 85 S.Ct. 1541, 14 L.Ed.2d 436); Cameron v. State, Fla.App.1959, 112 So.2d 864; Ard v. State, Fla.1959, 108 So.2d 38; Ferguson v. State, 1946, 157 Fla. 324, 25 So.2d 799; Bargesser v. State, 1928, 95 Fla. 401, 116 So. 11; Tilly v. State, 1885, 21 Fla. 242.

It should be noted that the above cited cases were decided prior to the decision of Miranda v. State of Arizona, supra. Our research has failed to reveal any cases decided subsequent to Miranda which deal with the situation with which we find ourselves confronted.

The instruction under attack as given by the trial court was taken from the case of McClain v. State, supra. Under the McClain ruling the said instruction was allowed on the theory that the inference was derived from the failure of the accused to Explain his possession of the stolen property. In alluding to the word 'explanation' the court stated "* * * (t)he 'explanation' of possession thus referred to is that given by the accused when He is first under duty to speak after such recently stolen property is discovered in his possession." (Emphasis added.)

However, in the Miranda case, decided June 13, 1966, the Supreme Court of the United States in a footnote stated:

'* * * In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact...