Opinion
No. 72-682.
April 17, 1973.
Appeal from the Criminal Court of Record for Dade County, Alfonso C. Sepe, J.
Paige Catlin and James D. Acosta, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
This appeal is by the defendant below from conviction in a single trial of conspiracy to commit a felony, to-wit: burglary, breaking and entering a dwelling with intent to commit grand larceny, and robbery.
The appellant presents two points on appeal. The first is a contention the trial court committed reversible error by allowing, over objection, testimony of alleged co-conspirators with reference to a drawing which had been prepared by one of them showing the floor plan of the premises to be robbed and indicating places therein of certain items. Second, the appellant contends the court erred in denying his motion for new trial predicated on the ground just mentioned.
In addition to other evidence submitted to establish the alleged conspiracy, one of the persons involved in the conspiracy who was presented as a witness for the state, testified that such a diagram had been made on a legal size sheet of paper, and testified to its contents to the extent of a general statement that it showed a floor plan of the residence and indicated location of items therein which were to be taken. It was further testified that the diagram no longer was available because it, and some copies which were made had been discarded after the transaction. The appellant argues that where the diagram was not produced, the allowance of such testimony relating to it was error in that it was a violation of the best evidence rule.
The state has presented sound arguments against that contention. First, the state submits that the admission of secondary evidence relating to the diagram was authorized by reason of the unavailability of the original, and that the reason for its unavailability, under the circumstances, was not such as to preclude the use of the secondary evidence. Second, the state cites Hancock v. State, 90 Fla. 178, 105 So. 401, holding that where the document or its contents are merely collateral, parol testimony referring thereto is not necessarily incompetent. Here, the contents of the diagram were not in issue or material, and the fact of the existence of such a diagram was only cumulative evidence of the conspiracy.
No reversible error having been made to appear, the judgment is affirmed.