RUSSELL T. WALKER, MRS. RUSSELL T. WALKER AND GUIDO DAPOS,
v.
THE STATE OF FLORIDA
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Our study of the record in this case convinces us that there was sufficient testimony to support a verdict finding the defendants Russell T. Walker and Guido Dapos guilty, but that the State failed to establish beyond a reasonable doubt the guilt of the defendant Mrs. Russell T. Walker, therefore, the judgment against Russell T. Walker and Guido Dapos is affirmed and that against Mrs. Russell T. Walker reversed.
TERRELL, CHAPMAN, THOMAS and ADAMS, JJ., concur.
BUFORD, C. J., BROWN and SEBRING, JJ., dissent.
dissenting:
I find myself unable to agree with the majority opinion in this case.
Appellants were convicted of breaking and entering into the Wayside Laundry, St. Petersburg, Florida, with intent to commit grand larceny. . They appeal. The State relies entirely upon circumstantial evidence to support the judgment. Is it sufficient? I think not.
It is so v/ell settled in this jurisdiction as to need no citation of authority that when circumstantial evidence is relied upon for conviction in a criminal case; the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt; they must be inconsistent with innocence.
*542At most, all that the evidence does in this case is point to the probability of guilt. This is not enough. Parish, et al., v. State, 98 Fla. 877, 124 So. 444.
Accordingly, I am of the opinion that the judgments should be reversed.
BUFORD, C. J., and BROWN, J., concurs.
SEBRING, J.,
dissenting:
I find myself unable to agree with the majority opinion in this case.
Appellants were convicted of breaking and entering into the Wayside Laundry, St. Petersburg, Florida, with intent to commit grand larceny. . They appeal. The State relies entirely upon circumstantial evidence to support the judgment. Is it sufficient? I think not.
It is so v/ell settled in this jurisdiction as to need no citation of authority that when circumstantial evidence is relied upon for conviction in a criminal case; the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt; they must be inconsistent with innocence. At most, all that the evidence does in this case is point to the probability of guilt. This is not enough. Parish, et al., v. State, 98 Fla. 877, 124 So. 444.
Accordingly, I am of the opinion that the judgments should be reversed.
BUFORD, C. J., and BROWN, J., concurs.
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Beavers v. Conner, 258 So. 2d 330 (Fla. 3d DCA 1972)…permitting the testimony in the instant case, each such situation will have to be scrutinized with utmost care whenever it arises and counsel should be very careful in testifying for a client while handling the trial. Dudley v. Wilson, 152 Fla. 752, 13 So. 2d 145; Millican v. Hunter, Fla.1954, 73 So. 2d 58; Hubbard v. Hubbard, Fla.App.1970, 233 So. 2d 150; In Re Estate of Freeman, Fla.App.1970, 240 So. 2d 656. As to the defense calling counsel-in-chief to [*333] testify as an adverse witness, we do not find…
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Hill v. Douglass, 271 So. 2d 1 (Fla. 1972)…ppeared during the course of the matter that petitioner must become a witness and would of course not try the cause under the provisions of Canon 19, Canons of Professional Ethics for Attorneys 32 F.S.A.1 [*3] Conflict appears with Dudley v. Wilson, 13 So. 2d 145 (Fla.1943), vesting jurisdiction here under Fla.Const. art. V, § 4, F.S.A. Of course there is no quarrel with the provisions of Canon 19 in requiring other counsel where the original attorney must testify. Neither is there any question here under C…
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Hill v. Douglass, 248 So. 2d 182 (Fla. 1st DCA 1971)…l will necessarily deprive his client of knowledge and experience of peculiar and irreplaceable value.” There is no distinction made as to whether or not the testimony supports the client’s case. In the early case of Dudley v. Wilson, 152 Fla. 752, 13 So. 2d 145 (1943), where the attorney was not permitted to testify as to consideration received by his client for a deed, the Supreme Court noted: “The dual capacity of counsel and witness in the trial of a cause, except as to formal matters, should be avoided…
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- James Parish v. State, 98 Fla. 877 (Fla. 1929)