Bird v. State

• Decision Date: 13 October 1904
• Citation: 48 Fla. 3,37 So. 525
• Court: Florida Supreme Court
• Parties: BIRD v. STATE.

37 So. 525

48 Fla. 3

BIRD v. STATE.

Florida Supreme Court, Division A.

October 13, 1904

Error to Circuit Court, Jefferson County; John W. Malone, Judge.

Oscar Bird was convicted of larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. In larceny, it is essential to a conviction that the property was taken 'animo furandi'; and where it clearly appears that the taking was perfectly consistent with honest conduct, although the party charged with the crime may have been mistaken, he cannot be convicted of larceny.

COUNSEL

John G Reardon, for plaintiffs in error.

R. L Anderson and O. T. Green, for defendant in error. At the spring term, 1904, of the circuit court of Jefferson county, the plaintiff in error was tried and convicted of the larceny of a bull, of the value of $7, of the property of Turner Sauls, and was sentenced to the state prison for two years, which sentence and judgment the plaintiff in error seeks to reverse in this court. A motion for a new trial was made on the grounds that the verdict was contrary to the evidence and weight of evidence, and contrary to law and to the charge of the court. On the trial the state proved by Herbert Roberts that he was doing business as a butcher in 1903 at Monticello, Fla.; that some time before June the plaintiff in error told him that he had a black bull he would sell witness, but it had strayed off, and as soon as he found it he would let witness know. The plaintiff in error, Bird, came into town one morning in June, and told witness he had found the bull, and had it in his field at home. Witness went out that afternoon, found the bull in Bird's cowpen, about four miles from town, where he lived, bought the bull for $4.50, butchered it that afternoon in Bird's pen, and brought the meat and hide back with him. The mark was a split in both ears, and underbit in right ear. A day or two later Turner Sauls came in and examined the hide and mark, and claimed that it was his animal.

Turner Sauls testified for the state that he had a small black bull which took up with the cattle of Lem Shuman last year (1902) who lived about a mile and a half from witness, on the road from witness' place to town. He frequently saw the bull with Shuman's cows when passing, and told Lem it was his. He knew it was his. It was marked split in each ear and underbit in right ear. In July, 1903, he heard defendant had been to Shuman's and carried away this bull as his own. He came to Monticello, and found the hide with Mr. Roberts, and recognized it as his bull by the color and mark. It was something over a year old, and weighed 100 to 115 pounds. He did not know what butchers were giving for beef, whether four or five cents. If he had butchered it and sold it by retail in Monticello, he could have realized from seven to ten dollars for it. All this occurred in Jefferson county, Fla.

Jack Sauls, son of previous witness, testified as to mark of the bull; that it took up with Shuman's cattle; saw it frequently in passing from town to his father's; and identified the bull as his father's property by the hide and earmarks.

Eddie Lary testified for the state that he lived near Shuman's; saw defendant carrying away a little bull; had it roped, and passed along the road by witness' house just before sundown; had seen it with Shuman's cows, but did not know who owned it. Defendant said it belonged to him, and had strayed off, and he had just found it, and was carrying it home.

George Lary testified for the state that he knew the little black bull, claimed by Sauls, that used to run with Shuman's cows, and saw it frequently with his cattle. Lived at same place with Oscar Bird in 1902, about two and a half miles from Shuman's. Oscar Bird had a cow and a calf, a dark-colored bull calf. He thinks it was born in the early part of 1902, but was unmarked when he moved away, for he remembered seeing it on December 26, 1902. Oscar Bird's mark was an open split and underbit in the right ear and split in left ear. The cow had this mark.

The defendant (plaintiff in error) introduced the following witnesses, who testified in substance as follows:

Dan Neil testified that he lived near defendant Oscar Bird last year (1902) and year before. They worked land on same place. Defendant had a cow and a dark mole-colored bull calf, born in the early part of 1902. Calf was marked open split and underbit in the right ear and split in the left ear, and defendant marked his stock with this mark. The calf strayed off in February or March, 1903. Remembered defendant's looking for it while we were splitting rails for Mr. Lamar. Witness lived about two and a half miles from Shuman's. Did not see the black bull defendant took from Shuman's, and did not know that it was one defendant lost.

James Burney testified that he lived with Oscar Bird last year (1902) and year before. He had a cow and a dark-colored bull calf. The calf strayed off early last year, and was about a year old. Bird's mark is open split and underbit in right ear and in left ear a split. The calf was so marked before it strayed off. His hogs are marked same way, and so was the mother of the calf. An open split is only a deeper split. Did not see the bull found by defendant with Shuman's cows, and did not know whether it was the one lost or not.

Annie Bird, wife of the defendant, testified that she saw the bull brought home and sold to Mr. Roberts. Defendant brought it home roped, put it in a stall that night, and turned it out next day on the green; in the evening drove it in the cowpen, and Mr. Roberts came out, bought, and butchered it there. They raised it from a calf, and witness recognized it as defendant's as soon as he brought it home. It was certainly his. It had been gone four or five months. She knew it by the mark and color.

Defendant testified in his own behalf that he owned a milk cow that had a dark-colored bull calf, born in the early part of 1902. He milked the cow that year, and marked the calf in his...