DAVID C. NEW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David New was convicted of breaking and entering a tavern with intent to commit a misdemeanor. On appeal, he challenged the sufficiency of circumstantial evidence and alleged improper search and seizure, but the court affirmed his conviction, finding the evidence legally sufficient and the search issue waived by failure to raise it before trial.
The circumstantial evidence was legally sufficient to support the conviction. The trial court properly admitted the evidence under the standard that circumstantial evidence requires only that it may tend even slightly to elucidate the inquiry and that relevance may appear upon consideration with other evidence. The search and seizure claim was waived by appellant's failure to raise it by motion to suppress prior to trial.
“The trial court is allowed great latitude in the reception of circumstantial evidence, allowing the jury to make reasonable inferences from it. Relevance is not determined by conclusiveness of inference; it is enough that it may tend even slightly to elucidate the inquiry.”
Establishes the standard for admissibility of circumstantial evidence in criminal cases
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Join FLexlaw to unlock all legal intelligenceA tavern window frame was twisted and screen pushed back. Missing from inventory were four cartons of Pall Malls, two six-packs of Pabst beer, and thr…
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The sign on the tavern said “Dew Drop Inn” and the appellant did, according to the court whose judgment is before us for review. He was convicted of breaking and entering a building other than a dwell*36ing house with intent to commit a misdemeanor, and appeals.
A window frame had been twisted, a screen pushed back and from the tavern owner’s inventory were missing four cartons of Pall Malls, two six-packs of Pabst and three quart bottles of bourbon, one each of Old Grand-Dad, Early Times and J. W. Dant. Found outside the building were one six-pack of Pabst and a tag marked “OGD” in the owner’s handwriting, which he identified as an inventory control marking. Found in the accused’s car were two empty Pabst bottles, three cartons of Pall Malls, a quart bottle of Early Times with a tag marked “ET” in the owner’s handwriting, a quart bottle of J. W. Dant with a tag marked “JWD” in the owner’s handwriting and a quart bottle of Old Grand-Dad with no tag. Found in the accused’s bedroom was an opened carton of Pall- Malls. The owner identified the inventory tags on the whisky. He couldn’t say for sure whether the Pabst beer and the Pall Mall cigarettes were the ones missing from his tavern. Appellant claims a legal insufficiency in this evidence. He is wrong.
The trial court is allowed great latitude in the reception of circumstantial evidence, allowing the jury to make reasonable inferences from it. Relevance is not determined by conclusiveness of inference; it is enough that it may tend even slightly to elucidate the inquiry. Astrachan v. State, 1947, 158 Fla. 457, 459, 28 So.2d 874, 875; Cannon v. State, 1926, 91 Fla. 214, 219-220, 107 So. 360, 363; Mobley v. State, 1899, 41 Fla. 621, 624, 26 So. 732, 733. Furthermore, it is sufficient that its relevance appear upon consideration with other evidence in the case. Parrish v. State, 1925, 90 Fla. 25, 34, 105 So. 130, 133-134; Thompson v. State, 1909, 58 Fla. 106, 109, 50 So. 507, 509. Ample relevance is apparent here, and the trial court did not err in admitting this evidence.
Appellant alleges that the trial court erred in permitting the prosecution to have the unbroken six-pack of beer marked for identification, to adduce testimony regarding it, and then to withdraw it. This was said to be so prejudicial as to cause the defendant to waive the jury and submit the case to the judge. It is doubtful that the appellant was prejudiced by this display, but since his counsel did not object to the display or move for mistrial he will not be heard to complain in this court.
Appellant assigns as error the admission of evidence obtained through what he claims was unlawful search and seizure. This question should have been, but was not, raised by motion to suppress prior to trial. Kelly v. State, Fla.App. 1967, 202 So.2d 901, 903-904; Moffett v. State, Fla.App. 1965, 179 So.2d 408, 411-413.
The record disclosing no error, the judgment of the court below is affirmed.
LILES, C. J., and HOBSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)…ile one is protected by the Constitution from an illegal search and seizure, yet the illegality of a search and seizure may be waived by his failure to object to it. Robertson v. State, 1927, 94 Fla. 770, 114 So. 534; New v. State, Fla.App.2d, 1968, 211 So. 2d 35. Our Supreme Court has noted that constitutional issues other than those constituting fundamental error are waived unless they are timely raised. Sanford v. Rubin, supra. Thus, it seems fair to conclude that whether errors of constitutional dimensio…
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Davis v. State, 226 So. 2d 257 (Fla. 2d DCA 1969)…motion to suppress was made for the first time during the trial itself. In support of its contention the State cites Moffett v. State, Fla.App. 1965, [*259] 179 So. 2d 408; Kelly v. State, Fla.App. 1967, 202 So. 2d 901; New v. State, Fla.App. 1968, 211 So. 2d 35. Taken together, these cases stand for the proposition that a motion to suppress made for the first time at trial is improper and therefore cannot be considered for appellate review. These cases, however, do not directly control the present situatio…
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O'Berry v. Louie L. Wainwright, 300 So. 2d 740 (Fla. 4th DCA 1974)…al court by a proper and timely objection; consequently, they have not been preserved for appellate review. State v. Barber, Fla., 301 So. 2d 7, opinion filed June 12, 1974; Simpson v. State, Fla.App.1968, 211 So. 2d 862; New v. State, Fla.App.1968, 211 So. 2d 35; Dodd v. State, Fla.App.1970, 232 So. 2d 235; State v. Jones, Fla.1967, 204 So. 2d 515; 2 Fla.Jur., Appeals, sec. 68; Rule 3.190(h), FRCrP. Except where fundamental error is involved, and we find none to exist here) it is essential that a defendant…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cannon v. State, 107 So. 360 (Fla. 1926)
- Parrish v. State, 90 Fla. 25 (Fla. 1925)
- Coy Kelly v. State, 202 So. 2d 901 (Fla. 2d DCA 1967)
- Mobley v. State, 41 Fla. 621 (Fla. 1899)
- Thompson v. State, 58 Fla. 106 (Fla. 1909)
- Moffett v. State, 179 So. 2d 408 (Fla. 2d DCA 1965)
- Astrachan v. State, 158 Fla. 457 (Fla. 1947)