Bass v. State
| Decision Date | 19 October 1909 |
| Parties | BASS v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Polk County; J. B. Wall, Judge.
Everett Bass was convicted of larceny, and he brings error. Affirmed.
Syllabus by the Court
Where an assignment is based upon the overruling of the motion for a new trial, an appellate court will consider only such grounds thereof as are argued, and, where no argument is made in support of any of the grounds, such assignment presents nothing for consideration, and will be treated as abandoned.
In a prosecution for larceny, no error was committed in refusing to instruct the jury, at the request of the defendant 'that the taking of property openly and notoriously without any attempt at concealment or denial, raises a strong presumption against a felonious intent, which you must find from the evidence, beyond a reasonable doubt, to have existed at the time or before the taking possession of the cattle before you will be authorized to find him guilty of larceny.' In so far as such requested instruction states the legal principle correctly, it is not a rule of law to be given in charge to a jury in prosecutions for larceny, but a presumption of fact, which the jury may apply in proper cases, and which may guide the court, in cases where it is applicable, in determining the sufficiency of evidence to support a verdict of guilty.
Any requested instruction is properly refused, which is confusing, involved, and argumentative, or which would have a tendency to mislead or confuse the jury.
There is a clear distinction between the expressions 'unexplained recent possession of stolen property' and 'unexplained possession of recently stolen property,' and the same cannot be used interchangeably. A requested instruction is properly refused, which loses sight of such distinction.
Requested instructions, though announcing correct principles of law applicable to the case, are properly refused, where such principles are fully covered in other instructions given at the trial, even though couched in different language.
The modification or qualification of a requested instruction which correctly states the law applicable to the case, is error, when the force of such requested instruction is essentially changed or weakened thereby; but, where the requested instruction should have been refused, the defendant is in no position to complain of a modification thereof, when, even with such modification, such instruction is too favorable to the defendant.
Where two distinct propositions of law in a charge are excepted to as a whole, the exception must fail, if either one of such propositions is correct.
Where an assignment is based upon the overruling of objections to a question, propounded by the state to the defendant on cross-examination, as to whether or not he wrote a certain letter, and such letter is not copied into the bill of exceptions and it does not appear that the same was ever introduced in evidence, such assignment must fail, because it is not made to appear that the defendant was harmed in any way by such ruling.
COUNSEL Wilson & Boswell, for plaintiff in error.
Park Trammell, Atty. Gen., for the State.
Everett Bass was convicted in the circuit court for Polk county of the crime of larceny of cattle, and sentenced to imprisonment at hard labor in the state prison for the term of five years from which he seeks relief here by writ of error.
The first assignment is based upon the overruling of the motion for a new trial. This motion consists of eight grounds; but none of them are argued before us, except as they are taken up under other error assigned. Hence, under the established practice of this court, this assignment must be treated as abandoned. See Johnson v. State, 55 Fla. 41, 46 So. 174, and Putnal v. State, 56 Fla. 86, 47 So. 864, and authorities cited therein.
The first assignment which is argued before us is the second, which is based upon the refusal of the court to give the following instruction, at the request of the defendant: 'The court instructs the jury that the taking of property openly and notoriously, without any attempt at concealment or denial, raises a strong presumption against a felonious intent, which you must find from the evidence, beyond a reasonable doubt, to have existed at the time or before the taking possession of the cattle, before you will be authorized to find him guilty of larceny.' In support of this assignment, the defendant cites Dean v. State, 41 Fla. 291, 26 So. 638, 79 Am. St. Rep. 186, and Black v. State, 83 Ala. 81, 3 So. 814, 3 Am. St. Rep. 691. Evidently the requested instruction was based on the second headnote in the case of Dean v. State, supra. As framed, such requested instruction is defective in several respects; but it is sufficient to say that the principle enunciated in the case of Dean v. State, supra, was fully discussed in Long v. State, 44 Fla. 134, 32 So. 870, wherein the Alabama decisions were referred to, and the conclusion reached and stated that such principle was taken from McMullen v. State, 53 Ala. 531, and was used argumentatively by this court in discussing the facts before it--it not being intended as 'a rule of law to be given in charge to a jury in prosecution for larceny, but a presumption of the fact, which the jury may apply in proper cases, and which may guide the court, in cases where it is applicable, in determining the sufficiency of evidence to support a verdict of guilty.' Also see Bird v. State, 48 Fla. 3, 37 So. 525. This assignment has not been sustained.
The third assignment is based upon the refusal of the following requested instruction: 'The jury is further instructed that the rule that a thief commits a new and distinct larceny, when he carries the stolen property into or through other counties than that of the original taking, is but a fiction to settle the question of venue in cases of larceny, and, where stolen property is thus taken from one county to another, a conviction in either county for the larceny may be had, if the elements necessary to constitute larceny shall be proven, and the jury satisfied beyond a reasonable doubt; but, before you can convict a person for larceny in a county into or through which property has been taken, you must be satisfied from the evidence beyond a reasonable doubt that all the elements necessary to constitute larceny did exist at the time and place of the original taking--that is, in the county where the larceny was first committed.' The reason given by the trial judge for his refusal to give this instruction was 'because of its tendency to confuse the jury,' and we think this constituted a sufficient reason, as the requested instruction was confusing, involved, and argumentative. See McCoggle v. State, 41 Fla. 525, 26 So. 734. The requested instruction was doubtless based upon Harrington v. State, 31 Tex. Cr. R. 577, 21 S.W. 356, which the plaintiff in error cites in support of this assignment. Such cited case contains an interesting and instructive discussion of the question of venue in the case of the larceny of animals carried from one county into another; but it furnishes no support for the contention here made. The reasoning used by this court in Long v. State, 44 Fla. 134, 32 So. 870, to which we referred in disposing of the second assignment, applies with equal force to this assignment.
The refusal of the court to give the following instruction requested by the defendant, forms the basis for the fourth assignment: ...
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