Albritton v. State

• Decision Date: 05 May 1921
• Citation: 88 So. 623,81 Fla. 684
• Parties: ALBRITTON v. STATE.
• Court: Florida Supreme Court

88 So. 623

81 Fla. 684

ALBRITTON v. STATE.

Florida Supreme Court

May 5, 1921

Error to Circuit Court, Taylor County; M. F. Horne, Judge.

Jesse Albritton was convicted of larceny, and brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Nonconsent of owner not presumed. In a trial for larceny, the nonconsent of the owner must be proved, as it cannot be presumed from the taking.

Nonconsent of owner may be proved by circumstantial evidence. If the absence of the owner is satisfactorily accounted for, his nonconsent may be proved by circumstantial evidence, provided the circumstances cumstances are such as to exclude every reasonable presumption that the owner consented.

COUNSEL

W. P. Chavous, of Mayo, and W. C. Hodges, of Tallahassee, for plaintiff in error.

Rivers H. Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen for the State.

OPINION

BROWNE, C.J.

The sole question presented by the record in this cause is the sufficiency of the evidence to support the verdict. The indictment charged the defendant with the larceny of one cow the property of 'Mrs. Alberta Chaires, J. L. Towles, S M. Towles, Mrs. Hettie Hogans, Mrs. Mattie Lou Howard, and W A. Towles.' It was proven that J. L. Towles, S. M. Towles, and W. A. Towles did not give or sell the cow to the defendant, and did not give their consent for him to kill it. Mrs. Alberta Chaires, Mrs. Hettie Hogans, and Mrs. Mattie Lou Howard did not testify, and there is nothing in the record to show that they did not give or sell the cow to the defendant, or give their consent for him to kill it.

The cow alleged to have been stolen was one of a number of range cattle belonging to the Towles heirs named in the indictment, and it does not appear from the testimony that the stock of cattle was in the exclusive custody and control of any one of the owners, or of any other person.

Underhill on Criminal Evidence (2d Ed.) § 295, says:

'The nonconsent of the owner must be proved, as it cannot be presumed from the taking'-citing State v. Storts, 138 Mo. 127, 39 S.W. 483; Garcia v. State, 26 Tex. 209, 210, 82 Am. Dec. 606; Wilson v. State, 12 Tex.App. 481, 487.

If the absence of the owner is satisfactorily accounted for, 'his nonconsent may be proved by circumstantial evidence, provided the circumstances are such as to exclude every reasonable presumption that the owner consented.' Id., citing Carroll v. People, 136 Ill. 456, 465, 466, 27 N.E. 18; Rex. v. Hazy, 2 C. & P. 458; State v. Skinner, 29 Or. 599, 46 P. 368; Trafton v. State, 5 Tex. App. 480; Files v. State, 36 Tex. Cr. R. 206, 36 S.W. 93; State v. Porter, 26 Mo. 201, 203; 2 Russ. on Crimes, 737; George v. United States, 1 Okl. Cr. 307, 97 P. 1052, 100 P. 46; Ray v. State, 4 Ga.App. 67, 60 S.E. 816; Van Syoc v. State, 69 Neb. 520, 96 N.W. 266; Jordan v. State, 51 Tex. Cr. R. 646, 104 S.W. 900; State v. Faulk, 22 S.D. 183, 116 N.W. 72; Wilson v. State, 45 Tex. 76, 78, 23 Am. Rep. 602; Housh v. People, 24 Colo. 262, 50 P. 1036.

There were six persons named in the indictment as the owners of the cow, and three of them failed to testify that they did not give their consent to the killing. Their absence was not accounted for, nor were there any circumstances proven that would exclude every reasonable presumption that they consented. The nonconsent of all the owners was an essential...