Opinion
No. 62-673.
April 8, 1964.
Appeal from the Criminal Court of Record for Dade County, Ben C. Willard, J.
Ellis S. Rubin, Miami, for appellant.
James W. Kynes, Jr., Atty. Gen., and Leonard R. Mellon, Asst. Atty. Gen, for appellee.
Before CARROLL, HORTON and TILLMAN PEARSON, JJ.
The appellant was found guilty after a non-jury trial of the charge of unlawful possession of marijuana in violation of the Florida Narcotic Drug Act. He appeals the judgment and sentence of two years in the state prison.
The only point presented by the appellant is that the court erred in adjudging the defendant guilty on evidence which failed to establish his guilt beyond a reasonable doubt. The record reveals that appellant's point is well-taken and we reverse.
The appellant was arrested by three police officers. Yet, only one of these officers testified at the trial. The State's only other witness was the police chemist who testified as to the marijuana content of a package. The defendant testified in his own behalf.
The policeman and the defendant agree that the defendant was being interrogated about another crime when defendant was asked to produce identification papers. The policeman testified that the defendant broke away and ran to his car where he pulled the marijuana package from under the floor mat and dropped it on the street. The defendant testified he went to his car with the policemen and produced the identification and that nothing occurred relating to the alleged package nor was he informed of any such charge until he was taken to the police station.
The state is not bound to call all the witnesses who were present at the time of the alleged criminal act. Brown v. State, 91 Fla. 682, 108 So. 842. But in order to secure a judgment of guilty, the State must produce sufficient evidence to prove the guilt of the defendant to a moral certainty and beyond a reasonable doubt. Rivers v. State, 140 Fla. 487, 192 So. 190. Human liberty is jealously guarded by the law. McNeil v. State, 104 Fla. 360, 139 So. 791.
Reversed.
ON PETITION FOR REHEARING GRANTED
After having granted the State's petition for a rehearing and having again heard argument, a majority of the Court felt that the original opinion herein should be revised by the elimination of one paragraph. We have therefore withdrawn the opinion first filed and substituted therefor the foregoing "Revised Opinion".
While I have signed the revised opinion in order to express the views of the majority, I would have adhered to the opinion as first written. The final paragraph, which was eliminated, expresses my further views on the appeal. It was as follows:
"The State's one witness is not corroborated in any particular by an additional witness or physical circumstance. His evidence is no more reasonable than that of the defendant. The scales are evenly balanced; accordingly, the defendant must be discharged."
On rehearing I would affirm the trial court's judgment of conviction, and therefore I respectfully dissent from the majority judgment of reversal.
The police officer's testimony, if accepted as true by the trier of the facts, was sufficient to sustain the judgment. Likewise, the contradictory testimony given by the defendant was such as would have justified his acquittal if the trial judge had accepted it as true and had rejected the policeman's testimony as being unworthy of belief. In this trial without a jury, it was the trial judge's duty under the law to resolve the conflicts in the evidence, and he was the sole judge of the weight of the evidence and of the credibility of the witnesses. There is no rule that the testimony of a single witness for the state is ineffectual unless corroborated, or which compels the use of more than one witness for the prosecution in order to prove a material fact. The weight of the evidence and the absence of reasonable doubt can not be made to depend upon a numerical superiority of witnesses. Heitman v. Davis, 127 Fla. 1., 172 So. 705, 706; In re Brackett's Estate, Fla.App. 1959, 109 So.2d 375, 378; 13 Fla.Jur., Evidence, §§ 409-410; 35 Fla.Jur., Witnesses, § 206.
The testimony of officer Piche included the following: "A I asked him where his automobile was parked. He stated it was parked in Roberts Drug Store Parking Lot across the street on Sixth Avenue, on the west, at which time we left the front of the store and he pointed to the parking lot. As I started across the street the defendant turned in the opposite direction and ran east on Flagler Street to a Cadillac parked in front of the bus station, approximately a hundred fifty feet from the drugstore. My partner and I chased him down, my partner going to the right hand side of the car and I to the left. The defendant opened the left hand door of the car and picked up the floormat at the accelerator and took a package from there and dropped it on the ground outside the door, by the driver's door, at which time we apprehended him and my partner took the defendant back to the store and I picked up the package."
The defendant testified in part as follows: "A I walked toward my car when they walked toward me. I didn't think I was under arrest. And I walked to the car to get my identification papers, and got to the car and the officer run behind me, Officer Davidson's partner, got through the widow, and I was leaning on the seat of the car opening the glove compartment, and the man with the officer, with the revolver, told me, `I could kill you. Get away from the glove compartment;' and I told him I wasn't doing anything wrong, that I was looking for my identification papers; and he told me, `Get out;' and I turned around and Officer Piche grabbed me under the arm and helped pull me out of the car, and pushed me to the rear of the car and pushed me against the fender and looked under the edge of the car, and from there on the seat of the car and on the drivers side, and looked on the sun visor and found the business papers, and I told him, `That is what I was looking for'; and after that they ran toward the trunk of the car and take the keys out of the trunk, and came toward me and said, `Get in our wagon.' I got in and they drove around fifteen or twenty minutes through lots looking for a truck, and didn't go back in with the officer and didn't say they found anything and didn't charge me with anything. * * * Q When was the first time you heard anything about narcotics. A At the police station — locked up. Q How long was that. A Fifteen or twenty minutes later."
The trial judge's decision comes to this court with a presumption of correctness which should prompt assumption by this court that his determination of the guilt of the defendant necessarily was based on accepting the testimony of the police officer as true and rejecting the testimony of the defendant as untrue, as was his prerogative under the law.