Flowers v. State

12 So. 2d 772, 152 Fla. 649, 1943 Fla. LEXIS 998

• Court: Supreme Court of Florida
• Decided: March 30, 1943
• Status: Published

Opinions

CHAPMAN, J.:

The appellant, Edgar Flowers, on May 7, 1942, was indicted for the crime of rape by a grand jury of Hillsborough County, Florida. He was placed upon trial and by a jury found guilty on June 5, 1942. His motions for arrest of judgment and new trial were denied and the defendant below sentenced to death. He has perfected his appeal therefrom to this Court. The victim is the wife of a soldier at the time stationed at MacDill Field with night duty assignments. His wife was residing at Apartment No. 10 situated at 111 South Newport Street, Tampa, Florida. She visited among friends and returned to the apartment about 11:30 P. M.; failed to lock the entrance door to the apartment and retired. Her testimony discloses that she was raped by the appellant in her bed in the apartment between 1:00 and 2:00 A. M. November 11, 1941. The appellant worked as a waiter at a restaurant at McDill Field and was there arrested on the afternoon of April 23, 1942..

The crime was reported to the police officers, when a description of the assailant was obtained and a search by the officers instituted for the person answering the description. The husband of the victim took many of his meals where appellant was employed but failed to identify him by the given description. The victim ate a meal with her husband at the restaurant after she was assaulted and prior to the arrest of the appellant and told her husband that “the waiter looked like her assailant,” but it was lightly considered or disregarded by her husband.

Counsel for appellant pose for adjudication six questions. Three of these go to the legal sufficiency of the evidence adduced by the State to sustain the verdict. The fourth raises the question as to the admissibility into evidence over the objection of the defendant of a shoe alleged to have been owned by the appellant and subsequently found near the scene of the crime. Questions five and six challenge the voluntariness of confessions alleged to have been made by the appellant to the officers concerning the crime after he was arrested.

Questions one, two and three may be considered under one assignment as they raise the question of the legal sufficiency of the testimony adduced by the State to sustain the verdict rendered, absent the challenged confessions, and in contradiction of the evidence offered by the appellant during the progress of the trial to sustain an alibi. The answer to these questions is found in the testimony. The record discloses that the victim was awakened around 1:00 o’clock A. M., and testified, “I just felt like there was somebody in the room with me and I raised up and said ‘Who is it?’ and nobody answered and I said, ‘Who is it?’ And he said ‘Don’t move or I will shoot.’ So then I raised up in the bed and. he said, ‘Don’t you scream,’ and said ‘If you scream I will kill you.’ And I said, ‘What are you going to do ?’ And he said, T am going to kiss you and am going to walk right out the door,’ and I started crying, and then he came right up to the bed to me, and so then, he leaned over and kissed me and he kept saying ‘don’t you scream, don’t you scream, if you do, I will kill you;’ So then he came on up and put a gun in my side, and then he came over and got up on the bed, and I kept using every excuse that I possibly could.”

“Q. Did he have intercourse with you then? A. Yes, sir. Q. And then after he completed that act of intercourse, go ahead and state what happened? A. I got up and I said I had to go to the bathroom and he went with me and he told me that they called him ‘White Joe,’ and that he had just gotten in from Atlanta that day, and he said, ‘Do you have fun like this all of the time?’ And so then he kneeled right in front of me in the bathroom and he had a knife in his hand; and then after I kept talking to him, telling him that my husband was coming home, he asked me what he did, and I told him that he was in the Army, and he asked me if he was working at MacDill or Drew, and I told him MacDill, and he asked me what my name was and I told him my maiden name; and so, I kept talking up to him and finally got him to the kitchen door, which was unlocked and kept talking to him and he made me promise that I would meet him on Wednesday night. This was early Tuesday morning. Q. In other words, this was Monday night and this happened on early Tuesday morning? A. About 1 o’clock early Tuesday morning.” He made you promise that you would meet him the following Wednesday night? A. That is right, and he asked me where to meet him and I told him I didn’t know, that I had just been in Tampa a little while and he said to meet me on Cass Street Bridge at 7:30, and he said if you don’t meet me there, there is no use for you to come back and go to bed, because I know where you are and there is no use to pull the shades down, because I know where you will be if you don’t meet me there, and he told me that if I called the police after he left my apartment that night, that he would come back and kill me.' Q. During all this conversation that you were having with him, you were standing, I believe you said, near the bathroom door towards the kitchen there? A. That is right. Q. Was there any light on in the house? A. Yes sir, and the street lights were shining in my apartment, and if you know these Newport Apartments there is a Court that goes all around it and the lights from the court were shining in the Apartment, and I got a real good look at him, and then I told him to let me see who I am meeting, so I will know who, and he opened the door and I got almost to his face and he said, ‘No, I don’t believe I will,’ and so after he got out of the door he went to my bedroom window and stood there and called me and whistled for me, and if I could have gotten to the telephone right then, then the Cops could have caught him when he got there. Q. All together then he was in the house there about how long after you awakened? A. I imagine 10 or 15 minutes.”-

On cross examination she testified:

“When you saw him out at MacDill Field, what was he doing out there? A. Working in the P. X. out there. Q. Working where? A. In the Post Exchange. Q. And that was some two or three weeks before he was finally arrested? A. That was on Sunday before he was caught the next Thursday week. Q. On Sunday before he was arrested the following Thursday week? A. Yes sir. Did you report to anyone at the time that you saw him at MacDill Field? A. No sir. Q. Did you report to anyone? A. Except my husband. He was sitting in front of the table, in front of me, and we were in there eating breakfast. Q. You don’t know whether he reported that to the Police or not? A. I don’t know. Q. Then, you and your husband waited more than a week before you ever reported to the Police that this man was working there'at MacDill Field? A. We did not report it at all. Q. You did not report it at all? A. No Sir. Q. If you knew that this was the same man why did you not tell the Police ? A. I saw him as he passed by our table, and I just got a glimpse of him, and as he went by I said, ‘Charlie, that looks like the negro,’ and he said, ‘You are just imagining things.’ Q. Mrs. Oakes, why was it that you did not tell the Police that this man was working there at the Post Exchange if you knew that he was the same man ? A. I say I didn’t get a good look at him. I got just a glance at him as he went by. Q. Then you were not certain that he was the same man? A. Not then, because I didn’t get a good look at him. Q. Just when did you become certain that he was the same man? A. When I saw him in the line-up at the Police Station. Q. When was that? A. On Friday after he was caught on ■ Thursday. I don’t know the date. Q. You visit the MacDill Field? Your husband works out there, does he not? A. Yes sir. Q. You had been in the Post Exchange there with your husband a good many times, have you not? A. Not very many. Q. Well, you have been there some haven’t you? A. Yes sir. Q. You saw quite a number of colored boys working there, did you not? A. Yes sir. Q. Did you ever see this boy working there before? A. No sir. Q. Well, if it is established that he had a regular job there at the Post Exchange and that you have been going there with your husband, and that he was waiting on tables and doing things around there, then you would doubt about this being the same man, would you not ? A. I was only out there one time after it happened and that was the Sunday that he passed by our table and I said that looks like the negro. Q. Mrs. Oakes, you are not certain that this is the negro boy that attacked you that night, are 3>ou? A. Yes sir, I am. Q. You are positive of that? A. I am positive. Q. You are sure that you could not be mistaken? A. No sir, I could not be. Q. Think about the condition and the situation there, it being a dark room that he came in when you saw him, and the situation and the circumstances. You know Mrs. Oakes that this is a case that is liable to result in this boy going to the electric chair, and you ought to be certain that he is the man? A. I am. Q. You are? A. Yes sir. Q. When was the last time you went to the Post Exchange before this happened ? A. I don’t know because I never did go out there unless maybe some Sunday afternoon maybe Charlie and I would ride out there, I would take him to work on Sunday morning, because I work and had no reason to go out there.”

She identified her assailant subsequently at the Cass Street Bridge, and observed and commented to her husband about the similar^ of the waiter (defendant) to her assailant when taking a meal with her husband at the restaurant where the defendant was employed a few days prior to his arrest. She later identified him at the police station. Her testimony is corroborated by officer Gray observing him at the Cass Street Bridge.

The officer testified viz:

“Q. Did you get a look at the negro that was about ten feet in front of the four ? A. I got a very good look at him. Q. When? A. When I was in the tower. I say I got a good look because as he was approaching the tower, I don’t know why, but he looked up like this as he was walking along several steps, and I was looking right down in his face. Q. What kind of lighting, if any, is there on the bridge there at that point. A. It is a pretty good light. There is several electric lights, which were lit up pretty well. Q. How far from a sidewalk where a man would walk was it from where you were in the tower? A. I would say approximately 15 feet, that is, just roughly guessing. Q. Could you give a general description of the negro you saw there at that time? A. Yes sir, I got an impression in my mind of the negro very good. Q. What was his general description? A. He was a negro around 5 foot, 8 or 9 inches tall, slender, I would call him brown skinned, and walked sort of quick like, is the description I give the other officers there after seeing this negro. Q. How was he dressed? A. He had on a brown hat and the hat was turned up all around and I would call it a dark green shirt, I noticed when he was walking away from me, that is a slipover sweater, not a shirt but a slipover sweater, and the back of it fit sort of like a coat in the back, and the sweater made his shoulders stand out erect as he was walking, and he walked sort of peppy, is the way I would describe his walk. Q. Did you see that person well enough to where you could identify him if you were to see him again? A. Oh, yes. Q. Did you identify him later? A. Yes sir. Q. Where? A. Over in the Police Station. Q. Who was it? A. This boy sitting here. Q. Can you say positively that this defendant sitting here is the one that you saw on the bridge that Wednesday night? A. Yes sir. . . .”

The appellant lived with his wife and her people at 1502 North B Street in the City of Tampa. It is near the scene on South Newport Street. The appellant, his wife, mother-in-law, sister-in-law and brother-in-law testified that on the evening of November 10, 1941, the appellant and wife were at home and planned to attend an Armistice Day dance the following night. He retired shortly after 11:00 o’clock and the appellant as testified to by the several witnesses, was at home with his family when the alleged crime was committed. The evidence given by these witnesses placed the appellant at home with his wife and other members of the family when the crime was committed. The proof of an alibi is sufficient if it raises a reasonable doubt in the minds of the jury that the defendant was present at the time and place of the commission of the crime charged. See Dees v. State, 99 Fla. 1144, 128 So. 485. Proof of an alibi must be sufficient to raise a reasonable doubt of the accused’s guilt in the mind of the jury. See Kines v. State, 121 Fla. 866, 164 So. 517. The accused, under the law, is not required to establish proof of an alibi beyond a reasonable doubt. See Blakes v. State, 133 Fla. 12, 182 So. 447.

The proof of an alibi depends on the credibility of the witnesses and the weight of the evidence and under our system the jury is the sole judge of whether the evidence raises or establishes a reasonable doubt. See Hamp v. State, 130 Fla. 801, 178 So. 833; Kines v. State, 121 Fla. 868, 164 So. 517; Caldwell v. State, 50 Fla. 4, 39 So. ,188; Murphy v. State, 31 Fla. 166, 12 So. 453; Adams v. State, 28 Fla. 511, 10 So. 106. It is established that disputes and conflicts in the evidence are questions for a jury under appropriate instrue-' tions.

It is next contended that the victim was a matured married woman; the scene of the crime was one of 24 apartments situated in the center of Tampa; that the surrounding apartments were occupied at the time and had an alarm or signal of distress been given, protection immediately would have been given. A number of authorities have been cited. The State’s answer to this is that the appellant placed a gun or knife on the victim’s stomach and told her she would be killed if she gave an alarm or resisted and she was forced to submit to the desires of the appellant. It is the law that the consent to carnal intercourse obtained from a woman by fear of personal violence is void, and though a man lays no hands on a woman, yet. if by an array of physical force he so overpowers her that she dares not resist, his intercourse with her is rape. See Doyle v. State, 39 Fla. 155, 22 So. 272; Rice v. State, 35 Fla. 236, 17 So. 286; Peterson v. State, 90 Fla. 361, 106 So. 75; Green v. State, 135 Fla. 17, 184 So. 504. The rule enunciated in Doyle v. State, supra, is approved by Wharton’s Criminal Law, Vol. 1 (12th Ed.) par. 701, pp. 942-4, viz:

“701. Acquiescence Through Fear Not Consent: — Consent, however reluctant, negatives rape; but where the woman is insensible through fright, or where she ceases resistance under fear of death or other great harm (such fear being guaged by her own capacity), the consummated act is rape. Thus, where a father by his ferocity establishes ‘a reign of terror’ in his family, and under this power his daughter remains passive while he has carnal intercourse with her, this intercourse, effected by terror, and without consent, is rape. Nor is it necessary that there should be force enough to create ‘reasonable apprehension of death.’ But it is necessary to prove in such case that the defendant intended to complete his purpose in defiance of all resistance.

“It is admissible for the prosecution under this head to give evidence of the defendant’s bodily strength, and of the prosecutrix’s bodily weakness, but not that the prosecutrix knew of the defendant’s bad character. While the degree of resistance is an incident by which consent can be determined, it is not in law necessary to show that the woman opposed all the resistance in her power, if her resistance was honest, and was the utmost, according to her lights, that she could offer.”

It is contended that the identity of the assailant has not been established by satisfactory evidence, coupled with the failure on the part of the victim to resist as a matter of law entitles the appellant to an order of reversal. We cannot agree with these contentions. Where the verdict is supported by substantial evidence, it will not be set aside as against the testimony, unless it may well be assumed that the jury was improperly influenced by considerations outside the evidence. See Kirkland v. State, 93 Fla. 172, 111 So. 351; Howell v. State, 102 Fla. 612, 136 So. 456; Braxton v. State, 132 Fla. 815, 182 So. 276; Jones v. State, 134 So. 358.

The sixth question posed by counsel for adjudication is to the effect that the appellant was arrested without a warrant; not informed by the officers as to the charges under which he was arrested and held: neither was he advised as to the effect and purpose of incriminating statements made, if any, and constitutional rights to him vouchsafed were totally disregarded by the officers. Section 901.15 Fla. Stats. 1941, provides for arrest by officers without warrant. Section 901.17, Fla. Stats. 1941, directs the arresting officer, without warrant, to inform the person to be arrested of his (officer’s) authority, together with the cause of the arrest, except when the person to be arrested is engaged in the commission of an offense or is pursued' in the commission of an offense or is pursued after its commission or after escape flees or forcibly resists, etc. It is contended that the appellant was arrested and held without legal authority.

The record discloses that on November 11, 1941, Apartment No. 10 at 111 South Newport Street, Tampa, was unlawfully entered and a woman assaulted. The officers had a description of the assailant. The appellant answered the description. The arresting officers, from the description of the appellant, had reasonable grounds to believe that the appellant had assaulted the women in Apartment No. 10. Sub-section 901.15, Fla. Stats. 1941, authorizes the arrest by the officers as shown to have been made. Counsel contends it was the duty of the arresting officers under Section 901.17, Fla. Stats. 1941, to inform the person to be arrested, without warrant, the cause of his arrest. It is true that the officer did not at the moment of' arrest advise as to the cause of arrest but did so subsequently. The appellant had escaped the officers at the Cass Street Bridge and fled from the scene. The .officers acted within the law and rights of the appellant were not violated. See Robertson v. State, 43 Fla. 156, 29 So. 535, 52 L.R.A. 751; People v. Stein, 265 Mich. 610, 251 N.W. 788, 92 A.L.R. 481, and annotations at pages 490-501; 5 C.J. pp. 396 and 408; 6 C.J.S. 592; Agnello v. United States, 269 U. S. 20, 70 L. Ed. 145, 46 Sup. Ct. 4, 51 A.L.R. 409, and annotations.

Section 901.22 Fla. Stats. 1941, makes it the duty of an officer arresting a person without warrant, immediately and without unnecessary delay, to take the person so arrested before a magistrate having jurisdiction and make the com plaint authorized by law, and obtain a warrant for which the person was arrested. The person arrested shall have the right to an interview and advise of counsel. See Section 901.25, Fla. Stats. 1941. The victim identified the appellant as her assailant on the Cass Street Bridge around 7:30 P.M. on November 12, 1941. She saw him at the restaurant and identified him later at the Police Station. Officer Gray saw him at the Cass Street Bridge at 7:30 P. M. November 12, 1941, and identified him at the trial as the same man.

On March 31, 1942, in the neighborhood of the scene of the crime a man’s shoe was found. A witness testified that he sold the shoe to the appellant. When taken into custody an officer gave the shoe to the appellant and asked him if it was his. He replied to the officer that the shoe was his and said he “had lost it.” The shoe was admitted into evidence over objections of counsel and it is contended that this ruling constitutes reversible error. It is contended that the State’s evidence fails to show that the appellant ever owned the shoe. Lawrence Carastra testified that he sold the appellant the shoe, and on cross examination admitted that if it was not the shoe he sold the appellant, it was one “just like it.” The appellant admitted to the officer that it was his shoe. We fail to find error in this ruling. It is a deductible inference from the presence of the shoe in the neighborhood of the crime that the defendant on March 31, 1942 left the shoe where it was found, but if he did not its presence near the scene is explainable and its admission into evidence at the most is harmless error. See Section 54.23 General Statutes 1941 and 22 C.J.S. Subsection (c) of Section 713, p. 1217.

Counsel contend that appellant was deprived of constitutional rights by the officers when arresting him in that they handcuffed him and questioned him for 24 hours; carried him from Tampa to Clearwater over the night for safe keeping; took him from place to place exhibiting him handcuffed and chained; arrested or caused the arrest of his wife; false statements were made by an officer to the appellant about finger prints; these several acts and statements were designed to obtain a confession in derogation of rights vouchsafed by the Federal and State Constitutions.

It is settled law that when it is shown a confession was freely and voluntarily made and no improper influences were exerted or reward held out to obtain it, the confession is properly admitted into evidence. Likewise it is the law that if an alleged confession was not freely and voluntarily made, it is error to admit the same into evidence against the party making it. See Williams v. State, 143 Fla. 826, 197 So. 526; Clay v. State, 143 Fla. 204, 196 So. 462; Smith v. State, 135 Fla. 835, 186 So. 203; Cawthon v. State, 118 Fla. 394, 159 So. 366; Dabney v. State, 119 Fla. 341, 161 So. 380; Harrison v. State, 110 Fla. 420, 148 So. 882; Nickels v. State, 90 Fla. 659, 106 So. 479; Green v. State, 40 Fla. 191, 23 So. 851; McNish v. State, 47 Fla. 69, 36 So. 176; Sims v. State, 59 Fla. 38, 52 So. 198; Williams v. State, 48 Fla. 65, 37 So. 521; Moore v. State, 68 Fla. 91, 66 So. 431; McDonald v. State, 70 Fla. 250, 70 So. 24; Davis v. State, 90 Fla. 317, 105 So. 843; Chambers v. State, 309 U. S. 227, 60 S. Ct. 472, 84 L. Ed. 716; Bram v. United States, 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 568; Ziang Sung Wan v. United States, 266 U. S. 1, 45 S. Ct. 1, 69 L. Ed. 131; White v. Texas, 310 U. S. 530, 60 S. Ct. 1032, 84 L. Ed. 1342; Ward v. Texas, 316 U. S. 547, 62 S. Ct. 1139; 86 L. Ed. 1663.

The record discloses that the trial court, when objections were made, excused the jury and in its absence heard testimony on the questions as to the .voluntariness of the challenged confession. The State and the defendant offered testimony pro and con. The appellant, two officers and a newspaper man went to 111 South Newport Street, and the appellant pointed out to them the place of intercourse, place where the bed was located, and the street traveled away from the scene. There was no force, coercion or duress exhibited and the appellant was in possession of his faculties when they accompanied him. He also pointed out to them the route of escape from the Cass Street Bridge. The appellant admitted that violence was not resorted to. The newspaper man and the two officers testified that the confession was voluntarily made, while the appellant testified contra. It was made to appear to the appellant that his finger prints had been obtained at the apartment, which was untrue. He made the confession and pointed out the several objects within four hours after the arrest. The appellant repeated his confession to an assistant prosecuting attorney and his statements were taken by a reporter and transcribed. The record shows that the appellant was advised of his constitutional rights by the attorney before he was questioned. The reporter so testified and the trial court properly admitted into evidence the confession because it was voluntarily made.

The record fails to support the several contentions underlying the question posed for adjudication. The appellant made his confession within about four hours after his arrest and he was not questioned or harrassed for 24 hours as contended; the appellant was not chained and handcuffed but a chain was welded onto the cuffs; there is nothing in the record to sustain the contention as to mob violence; it is true that his wife was arrested but was immediately discharged; he was handcuffed while on tour of the scene of the crime and also the place and avenue of escape; the record fails to sustain the statement to the appellant that his finger prints were found in Apartment No. 10 at 111 South Newport Street.

We are not convinced that the appellant brought himself within the rule expressed in Ward v. Texas, supra (text 62 S. Ct. 1143), viz:

“This Court has set aside convictions based upon confessions extorted from ignorant persons who have been subjected to persistent and protracted questioning, or who have been threatened with mob violence, or who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely and isolated places for questioning. . .

We fail to find error in the record.

Affirmed.

TERRELL, THOMAS, ADAMS and SEBRING, JJ., concur. BUFORD, C. J., dissents. BROWN, J., dissents in part.