Opinion
December 18, 1951. On Rehearing May 20, 1952. Further Rehearing Denied July 7, 1952.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
George S. Okell, Miami, for appellant.
Richard W. Ervin, Atty. Gen., Phillip Goldman and Leonard Pepper, Asst. Attys. Gen., Glenn C. Mincer, State Atty., and Harvie S. Duval, Asst. State Atty., Miami, for appellee.
Appellant was indicted and tried for murder in the first degree and convicted of manslaughter. The evidence was entirely circumstantial. When the State relies on circumstantial evidence, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with guilt. They must be inconsistent with innocence. Frank v. State, 121 Fla. 53, 163 So. 223 and similar cases.
We have examined the evidence carefully and we do not think it meets this test. It may be said to create a strong probability of guilt but when measured by the approved test, that is not sufficient. The judgment is therefore reversed and a new trial awarded.
Reversed.
HOBSON, ROBERTS and MATHEWS, JJ., concur.
SEBRING, C.J., and CHAPMAN and THOMAS, JJ., dissent.
On Rehearing Granted
On rehearing granted it is the view of a majority of the members of this court that the evidence, although circumstantial, was sufficient to establish the identity of the appellant as the assailant of the deceased, within the rule of Frank v. State, 121 Fla. 53, 163 So. 223 and similar cases.
The evidence adduced by the State was, in substance, as follows: The deceased, a young negro woman, was found dead in her room in a rooming house shortly after 6:00 p.m. by police officers, who were called to the scene by deceased's landlady. The body of the deceased was lying nude on the bed with a bullet wound under the left breast. The door was latched on the inside, and the police had to break down the door in order to effect an entry. There was no disorder or other signs of a struggle in the room. Another occupant of the rooming house, one Bernice Terrell, who roomed directly across the hall from the deceased, had heard a shot about 4:30 p.m. and had also heard the voice of the deceased saying "You done killed me; you done killed me!" Bernice did not investigate but went instead out on the front porch and waited there with a friend until the landlady came home about 6:00 p.m. The landlady then knocked on the door of the deceased's room and, receiving no answer, called the police.
The only method of ingress to deceased's room, which was on the second floor, was by an outside stairway which led to the front porch, then across the porch, and into a hall. The deceased's room was the first one on the right and contained a window opening onto the front porch. The stairway could also be reached, without crossing the front porch, by climbing out of a side window in deceased's room and dropping down a few feet to the stairway. The screen of the side window had been broken out.
It appears that the appellant had been a frequent visitor of the deceased for several months prior to her death, and he was seen to enter with her into her room sometime between 2:15 and 3:00 p.m. on the day of her death, closing the door behind him. He was also identified by two witnesses as having climbed out of the side window of the deceased's room about 6:00 p.m. on that day. The State's witness, Henry Hunt, testified that he arrived home from a hunting trip about 4:00 p.m.; that he and a friend, Tom Moreland, started cleaning the rabbits he had killed; that sometime thereafter he heard a gun shot; that he continued cleaning the rabbits, and that when he finished and went outside to garbage can, he saw the appellant climbing out of the side window of the deceased's rooming house, which was just across the street. He testified that
"A. It was this man that I see right here, climbing out of this window. He come out backwards, with his back turned to the street * * *.
* * * * * *
"Q. Did he get on the steps? A. Yes, he got on the steps.
"Q. What did he do after he got on the steps? A. He come down the steps, and there was a car parked on the terrace, on the same side — it is where the stairway was — and when he got to the car, I never seed which way he went or what happened after that.
* * * * * *
"Q. Have you ever seen Harold Francis before? A. Yes, sir. I have seed him several times.
"Q. How long have you known him? A. I have been knowing him 30 years — ever since he was a boy.
* * * * * *
"Q. You are positive that that was Harold Francis, Sr. that you saw coming out of that window? A. Absolutely."
Tom Moreland also testified to the same effect as the witness, Henry Hunt.
It was shown that the bullet which caused deceased's death was a 38-caliber special and was a type similar to that used in a 38-caliber Smith Wesson Special cartridge case which was found in the deceased's room. The appellant admitted that he owned a 38 Smith Wesson nickel-plated revolver. The appellant's son testified that his father had sent him earlier that day to get this revolver; that he had done so and had placed it in the glove compartment of the car, where it was usually kept.
A State's witness testified that at about 6:30 p.m. on the day deceased was killed, she answered a telephone call from the appellant; that he asked for the deceased and, upon being advised that she was evidently not at home, he identified himself and requested her to tell the deceased that he had called; and that, although she had taken other telephone calls from the appellant for the deceased, this was the first time he had ever identified himself over the telephone to the witness.
The witnesses who testified to seeing the appellant climbing out of the window of deceased's room stated that the appellant was wearing dark trousers, a white shirt and no hat. When taken into custody, the appellant was dressed in the same manner. It was also shown that cigarette stubs of the brand smoked by the appellant were found in an ashtray in deceased's room.
The appellant denied having visited the deceased on the day of her death and attempted to establish an alibi to account for his whereabouts during the hours in which the deceased could have been killed. The jury evidently chose not to believe this alibi.
We are cognizant of the rule that to support a conviction based solely on circumstantial evidence the facts must not only be consistent with guilt, but must also be inconsistent with innocence. Frank v. State, 121 Fla. 53, 163 So. 223; but we hold that the circumstances here present fairly meet the test. Thus, the jury had the right to find that it was inconsistent with innocence for the appellant to attempt to establish an alibi. He was positively identified by four witnesses who saw him either going into or leaving her dwelling. If he had been innocent of wrongdoing, there would have been no reason to deny his presence there. The fact that, upon being taken into custody, the appellant stated that his revolver had been stolen that very day could be considered as inconsistent with innocence. There were other suspicious circumstances, which we will not here relate, from which the jury could have inferred guilt.
We hold, then, that the circumstances here present, when taken as a whole, lead to a reasonable and moral certainty that the accused and no one else committed the crime charged and that they were not only consistent with guilt but also inconsistent with innocence. We therefore recede from our former opinion holding that the evidence was insufficient to sustain the verdict and conviction of appellant.
The other questions posed by appellant on this appeal have been carefully considered, and no error has been found.
For the reasons stated, the judgment appealed from should be and it is hereby
Affirmed.
SEBRING, C.J., and CHAPMAN, THOMAS, HOBSON, ROBERTS and MATHEWS, JJ., concur.
TERRELL, J., dissents.