Morton v. State

205 So. 2d 662
CourtDistrict Court of Appeal of Florida
DecidedJanuary 12, 1968
Docket67-218
StatusPublished
Cited by9 cases

This text of 205 So. 2d 662 (Morton v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morton v. State, 205 So. 2d 662 (Fla. Ct. App. 1968).

Opinion

205 So.2d 662 (1968)

Aubrey V. MORTON, Appellant,
v.
STATE of Florida, Appellee.

No. 67-218.

District Court of Appeal of Florida. Second District.

January 12, 1968.
Rehearing Denied January 31, 1968.

Robert E. Jagger, Public Defender, and Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

This is an appeal by Aubrey V. Morton, defendant in the Court below, from a judgment and sentence entered against him pursuant to a jury verdict finding him guilty of stealing an automobile.

*663 Defendant was informed against in the Pinellas County Circuit Court for larceny of a 1955 Plymouth automobile, the property of Barbara A. Armstrong. Upon trial before jury, he was found guilty of the charge contained in the information, and he appeals to this Court from a judgment and sentence entered by the Court pursuant to the verdict. Two contentions are made here for reversal: (1) the State failed to prove sufficiently the nonconsent of the car owner to the taking of the vehicle by defendant, and (2) the Court should have declared a mistrial when, on cross-examination, after defendant had admitted being previously convicted of a felony, he was asked the further question, "How many times?" We consider these two questions in inverse order.

(1) The question as to plurality of convictions.

After the State had rested its case, defendant took the witness stand and after finishing his direct testimony, the cross-examination began as follows:

"BY MR. ALLWEISS (Asst. State Atty.):
Q Mr. Morton, have you ever been convicted of a felony?
A I have, sir.
Q How many times?
MR. FURNELL (Asst. Public Defender):
I object, Your Honor. I would like to approach the bench.
* * * * * *
THE COURT: The objection to the second question is sustained. I don't think it was answered. The jury is instructed to disregard the second question."

Thereafter the Court denied a motion for mistrial based upon the foregoing. It will be observed that objection was sustained to the question "How many times?" Defendant contends that the asking of the question was prejudicial and that the Court should not only have disallowed the answer but also have granted a mistrial. There is no merit in such contention.

F.S. Sec. 90.08 F.S.A. reads as follows:

"90.08 Witnesses; conviction of other crimes as disqualification
No person shall be disqualified to testify as a witness in any court of this state by reason of conviction of any crime except perjury, but his testimony shall be received in evidence under the rules, as any other testimony; provided, however, evidence of such conviction may be given to affect the credibility of the said witness, and that such conviction may be proved by questioning the proposed witness, or, if he deny it, by producing a record of his conviction. Testimony of the general reputation of said witness may likewise be given in evidence to affect his credibility." (Emphasis supplied).

It will be noted that in the body of Sec. 90.08 the word "crime" is in the singular while in the title it reads "crimes" in the plural. In several cases the Florida Supreme Court, and also the 5th U.S. Court of Appeals, have held, in construing said section, that it contemplates prior convictions in the plural sense. Mead v. State, Fla. 1956, 86 So.2d 773; Lockwood v. State, Fla.App. 1958, 107 So.2d 770; Collins v. State, 1944, 155 Fla. 141, 19 So.2d 718; Williams v. United States, 5 C.A.Fla. 1931, 46 F.2d 731, and Whalen v. United States, 5 C.A.Fla. 1966, 367 F.2d 468.

We quote briefly from these cases, beginning with Mead (text 86 So.2d 774):

"* * * [O]nce the appellant became a witness he could be examined the same as any other witness about matters that would illuminate the quality of his testimony, and in the process he could be properly asked about former convictions of `crime.' Sec. 90.08, Florida Statutes 1953, and F.S.A. Evidence of conviction of other crimes might affect the credit *664 the jury would give his story, Martin v. State, 86 Fla. 616, 98 So. 827, cited in Watts v. State, 160 Fla. 268, 34 So.2d 429." (Emphasis supplied)

In Collins (text 19 So.2d 719):

"The fourth and fifth questions challenge the propriety of the cross-examination of defendant by the State's Attorney (when the defendant was testifying on the trial as a witness in his own behalf) as to former convictions of defendant. From careful consideration of the record, we do not find that the course pursued by the State's Attorney offends against the enunciations by us in the case of Washington v. State, 86 Fla. 519, 98 So. 603, or in Martin v. State, 86 Fla. 616, 98 So. 827. In the case before us the State's Attorney did not seek to have the witness state the facts or circumstances of any offense of which he had been convicted; neither did he attempt to show that defendant had been convicted of any offense involving personal violence. The examination sought to elicit information as to the number of times, if any, the witness has been convicted. The defendant requested no charge by the trial court in regard to the effect, if any, to be given such evidence and, therefore, cannot be heard to complain that no special charge was given as to this."

In Williams (text 46 F.2d 732):

"It is elementary that, when a defendant takes the stand, he may be asked any question that would tend to impeach him the same as any other witness, and he may be interrogated as to previous convictions. It was proper to interrogate these defendants as to their own previous convictions. * * *" (Emphasis supplied).

And in Whalen (text 367 F.2d 470):

"The court did not commit error when it asked the defendant if he had been convicted of more than one felony after the defendant had admitted that he had been convicted of one felony. The law is settled in this circuit that for purposes of impeachment evidence of prior convictions may be introduced against a defendant who takes the witness stand. The rule of impeachment by prior conviction is not limited to the mention of only one conviction or of simply `prior conviction'. See, for example, Kemp v. Government of Canal Zone, 5 Cir.1948, 167 F.2d 938, 940 (two felonies); Russell v. United States, 5 Cir. 1945, 146 F.2d 129 (`previous convictions of crime'); Matthews v. United States, 5 Cir.1945, 145 F.2d 823 (`other felonies')." (Emphasis supplied).

Lockwood was a case decided by this 2nd District Court, and the opinion by Judge Allen first quotes the record as follows:

"Defendant was charged with robbery, and during the trial, on cross-examination of defendant, the following occurred:
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205 So. 2d 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morton-v-state-fladistctapp-1968.