Opinion
May 26, 1950.
Appeal from the Circuit Court, Highlands County, D.O. Rogers, J.
Lloyd Bass, Jacksonville, for appellants.
Richard W. Ervin, Attorney General and Philip Goldman, Assistant Attorney General, for appellee.
An information was filed on March 16, 1949, in the Circuit Court of Highlands County, Florida, charging Lee McAfee with the crime of robbery on 25th day of January, 1949. The same information charged John Lloyd, Ted Rinehart, William Febre and Robert Sapp as principals in the second degree in that each of them were present aiding, counseling, abetting and procuring Lee McAfee to do and commit the aforesaid felony. Upon arraignment to the information the defendants entered pleas of not guilty, were placed upon trial before a jury, and found guilty of the crime as charged. From the judgments of conviction Lee McAfee, Ted Rinehart and Robert Sapp appealed.
The record discloses the following factual situation: the defendants named in the information were State prisoners on January 25, 1949, and, with others, were working under guards on one of the State's highways of Highlands County. They over-powered their guard, took from him a pistol and shot gun, forced a truck driver out of a truck owned by the State Road Department and took possession of the truck and the five men named in the information rode away in the truck armed with the pistol and shot gun forcibly taken from their guard. These men were later captured and the truck recovered, along with the shot gun and pistol. The State at the trial adduced testimony in support of the material allegations of the information and rested its case.
Ted Rinehart, one of the appellants, was represented by counsel and, with the other defendants, gave testimony in the lower court. Their version of the alleged crime as testified to was not at variance with the State's testimony except as to minor details. On the essential elements of the alleged crime the two sets of witnesses were in substantial accord. In construing and weighing the evidence adduced and applying thereto the principles of law as given by the trial court, it is difficult to appreciate how the jury could have arrived at any verdict other than the one entered below. Counsel for Rinehart during the trial objected, from time to time, to the admission of testimony offered by the State; he cross examined the State's witnesses; and directed the examination of Rinehart as a witness and the other defendants when each were on the witness stand. The evidence clearly established the guilt of each of the appellants.
It is contended that two of the appellants were insolvent and unable to employ counsel to represent them in the trial below and were forced into trial without counsel in violation of our State and Federal Constitutions. The record reflects orders of insolvency entered below in behalf of the appellants. Ted Rinehart, through counsel, moved the court for an order of severance but the same was denied. Thereafter counsel for Rinehart, as disclosed by the record, in representing Rinehart likewise represented the other defendants but technically was not their attorney of record. We admit arguendo that appellants McAfee and Sapp were not able to obtain counsel and were tried below without the aid of counsel. These two appellants, as shown by the record, at no time requested the trial court to appoint counsel to represent them during the trial of the cause.
Section 909.21, F.S.A., authorizes the trial court to appoint counsel and fix the amount of compensation for professional services of insolvent defendants charged with capital offenses, but we have no provision for the appointment of counsel for insolvent defendants charged with criminal offenses less than capital. See Watson v. State, 142 Fla. 218, 194 So. 640 (a manslaughter case); Johnson v. Mayo, 158 Fla. 264, 28 So.2d 585 (larceny of an automobile), certiorari denied: 329 U.S. 804, 67 S.Ct. 492, 91 L.Ed. 687; rehearing denied, 329 U.S. 835, 67 S.Ct. 631, 91 L.Ed. 707.
The record reflects the following:
"By The Court: What say the defendants who have no counsel? Have you any further testimony that you gentlemen wish to offer? Have you any other witnesses you want to use here in your defense? No? Alright. Each defendant answered no.
"Defense Rests.
By The Court: Both the State and Defense announced that they rested. Whereupon, counsel for the State argued the cause on behalf of the State and the cause of the defendant, Ted Rinehart, was argued by his attorney, Guy McPherson. The defendants, Lee McAfee, John Lloyd, William Febre and Robert Sapp, each made separate statements to the jury in the exercise of their right to argue their cause to the jury. After the arguments aforesaid, the Court then instructed the jury."
Counsel for appellants, in support of their contention, cite many of the latest decisions of the Supreme Court of the United States. We have reviewed here a considerable number of the cases cited. The case of Foster v. People of State of Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955-1958, involved an indictment charging burglary and larceny to which pleas of guilty were entered and Foster, in the State of Illinois, did not have the benefit of counsel but the judgment was affirmed.
The Court in part said, text 332 U.S. 136-137, 67 S.Ct. at page 1717, 91 L.Ed. 1955:
"The considerations that guide the disposition of this case have been canvassed here in a series of recent opinions. The `due process of law' which the Fourteenth Amendment exacts from the States is a conception of fundamental justice. See Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270, 48 A.L.R. 1102; Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151, 152, 82 L.Ed. 288. It is not satisfied by merely formal procedural correctness, nor is it confined by any absolute rule such as that which the Sixth Amendment contains in securing to an accused `the Assistance of counsel for his defence.' By virtue of that provision, counsel must be furnished to an indigent defendant prosecuted in a federal court in every case, whatever the circumstances. See Palko v. State of Connecticut, supra, 302 U.S. at page 327, 58 S.Ct. at page 152, 82 L.Ed. 288; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Betts v. Brady, 316 U.S. 455, 464-465, 62 S.Ct. 1252, 1257, 86 L.Ed. 1595. Prosecutions in State courts are not subject to this fixed requirement. So we have held upon fullest consideration. Betts v. Brady, supra. But process of law in order to be `due' does require that a State give a defendant ample opportunity to meet an accusation. And so, in the circumstances of a `particular situation,' assignment of counsel may be `essential to the substance of a hearing' as part of the due process which the Fourteenth Amendment exacts from a State which imposes sentence. Palko v. Connecticut, supra, 302 U.S. at page 327, 58 S.Ct. at page 152, 82 L.Ed. 288. Such need may exist whether an accused contests a charge against him or pleads guilty.
"* * * And so, in every case in which this doctrine was invoked and due process was found wanting, the prisoner sustained the burden of proving, or was prepared to prove but was denied opportunity, that for want of benefit of counsel an ingredient of unfairness actively operated in the process that resulted in his confinement * * *."
We find nothing in the record as the basis of appellants' question two. Question three challenges the admissibility into evidence of certain statements made during the progress of the trial by State witnesses Sapp and Peake. The record reflects that attorney McPherson, attorney for Ted Rinehart, carefully and thoroughly cross-examined each of the State's witnesses. As we study the record, these assignments go to the creditability of the testimony rather than its admissibility. The contention is without merit.
It appears by the record that the trial court instructed the jury upon the law of the case. Counsel for Rinehart seasonably placed with the trial court requested written charges, some of which were given and some were refused. Certain portions of the charges as given are singled out and it is here contended that they are erroneous. The contention is made under questions referred to in the brief as 4, 5, 6, 7, 8 and 9. We have given careful consideration to these assignments and it is our view that they are without merit.
Affirmed.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.