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I am unable to agree to the conclusion reached by the majority of the court because of the manner in which it deals with the objection made at the trial to the introduction of certain clothing worn by the prosecuting witness at the time of the alleged crime. This evidence offered in support of a charge of assault with intent to commit rape was of considerable importance *Page 813 and in all probability had great weight with the jury in determining the guilt of the accused.
It is said in the majority opinion that "the record fails to disclose the change, if any, in the condition of the articles of clothing at the time of the alleged assault and when offered and admitted into evidence." Then there is added the observation that "the objections of counsel fail to state or describe the alleged changed condition of the several articles of clothing." This statement indicates that the burden was the defendant's to establish that the clothing was not in the same condition at the time of the trial as when taken from the body of the prosecuting witness immediately following the attack upon her.
It is my view that when evidence of this character is offered by the state and challenged by the defendant on the ground that it has not been properly identified the prosecution must show its admissibility by demonstrating that the objects offered are in substantially the same condition as they were at the time of the commission of the offense. Wharton's Criminal Evidence (11th Edition), Volume 2, page 757, citing Hancock v. State,
90 Fla. 178 ,105 So. 401 .It seems appropriate at this juncture to review briefly the procedure in the trial court leading up to the attempted identification of the articles of clothing. There had been a former trial of the case. At the subseqeunt trial, the record of which is before us, the state attorney called as a witness the clerk of the circuit court and asked her if she held such position at the last term of the court. She replied in the affirmative and was then asked to "please examine that bag [containing the clothing] and tell what that is?" To which she replied "It is the exhibit filed in *Page 814 evidence by the State of Florida in the case of State of Florida v. John Lutrelle." There followed the question whether she had "had possession of this exhibit since the last trial." Her answer: "Yes sir." There was no effort to prove who had the custody of this important evidence at any time prior to the former trial."
It is my conviction that the first proceeding was nugatory and that the second one proceeded de novo as if no trial had been held. 39 Am. Jur. New Trial page 217. When the testimony was later introduced at the second trial there was no presumption that it had been properly identified at the initial one. It is reasonable to suppose that the original introduction of the evidence was based upon the testimony of witnesses who knew of its whereabouts and conditions up until that time. That evidence was not, and could not have been, considered (Chapter 8572, Laws of Florida, Acts of 1921) at the trial which culminated in conviction.
It is my firm belief that the admission, in the manner described, of the garments worn by the woman at the time of the alleged assault with intent to rape was reversible error.
BROWN, C. J., and BUFORD, J., dissent.
Document Info
Citation Numbers: 9 So. 2d 93, 150 Fla. 809
Judges: CHAPMAN, J.:
Filed Date: 6/12/1942
Precedential Status: Precedential
Modified Date: 1/12/2023