Bargesser v. State
| Decision Date | 01 March 1928 |
| Parties | BARGESSER v. STATE. |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Hillsborough County; W. Raleigh Petteway, Judge.
T. E Bargesser was convicted of the larceny of an automobile and of receiving it after it was stolen, and he brings error.
Reversed.
W. K. Zewadski, Jr., and Wm. C. Pierce, both of Tampa, for plaintiff in error.
Fred H Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.
Plaintiff in error, who will be referred to hereinafter as the defendant, was charged by information with the larceny of one Ford coupé, and in a second count with having feloniously bought, received, concealed, and aided in the concealment of one Ford coupé, knowing the same to be stolen property. The Ford coupé mentioned in each count is the same automobile and it is alleged in each count that it was then the property of Erin Fitzgerald.
Upon a plea of not guilty, a trial was had, and the jury found the defendant 'guilty as charged in the information.' The verdict is in effect a conviction of the defendant of both of the two separate crimes charged in the information. Washington v. State, 51 Fla. 137, 40 So. 765.
On writ of error to review the judgment of conviction, the defendant contends that such a verdict and judgment are not authorized by law, since the two crimes charged are distinct and inconsistent offenses relating to the same property owned at the time by the same person, and that the defendant cannot, therefore, be lawfully convicted under both counts. The facts in this case are essentially dissimilar to those in Washington v. State, supra, wherein the two charges in the information, one of larceny and the other of receiving stolen goods, involved different property. In O'Neal v. State, 54 Fla. 96, 44 So. 940, the specific point here under consideration was not considered.
We find the defendant's contention in the respect above stated to be well founded. Although a count charging each of these offenses against the same person and with respect to the same property may properly be included in one information, a verdict which in effect finds the defendant guilty both as a principal in the larceny and as a receiver of the same goods which he himself has stolen is inconsistent, and no judgment can be rendered upon it, although the evidence might sustain a conviction under either count. The difficulty does not result from the joinder of the counts in the information, but arises from the evidence. It appears by the record that the automobile in question was found in the possession of the defendant shortly after the same had been stolen from its owner, Erin Fitzgerald; the discovery of the automobile being occasioned by the efforts of the defendant to dispose of it. There had been, however, only one larceny of the automobile. The defendant undertook to explain his possession thereof, claiming that he came into such possession by lawful means, which he described, but the jury apparently rejected such explanation. The verdict convicted the defendant, both as a principal in the larceny and as a guilty receiver of the same property, knowing it to have been stolen; only one larceny of the automobile being involved. The evidence might have sustained a finding of guilty of either offense, but not of both. Larceny and receiving stolen goods knowing the same to be stolen are separate and distinct offenses, and, where the same property, the same larceny, and the same person as principal are involved, they are in law inconsistent offenses. Although the rule seems to be that a confederate of the actual thief who was present aiding and abetting in the larceny and who received the stolen property from the principal may be found guilty of receiving or concealing the stolen property (Adams v. State, 60 Fla. 1, 53 So. 451, Ann. Cas. 1912B, 1209; ...
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