Byrd v. State

• Decision Date: 18 April 1941
• Citation: 146 Fla. 686,1 So.2d 624
• Parties: BYRD v. STATE.
• Court: Florida Supreme Court

1 So.2d 624

146 Fla. 686

BYRD v. STATE.

Florida Supreme Court

April 18, 1941

Appeal from Criminal Court, Hillsborough County; John R. Himes judge.

John R. Parkhill, of Tampa, for appellant.

J. Tom Watson, Atty. Gen., and Nathan Cockrell, Asst. Atty. Gen for appellee.

BUFORD, Justice.

Under an information filed in the Criminal Court of Record of Hillsborough Countyappellant was convicted on the first second, fourth, and fifth counts.

The first count charged the offense of assault with intent to murder in the first degree.Conviction was of aggravated assault, a misdemeanor.Under the second count defendant was convicted of simple assault, a misdemeanor.The fourth count charged petit larceny and conviction was of petit larceny, a misdemeanor.As to these three judgments of convictions for misdemeanors the Circuit Court has final appellate jurisdiction under the provisions of Section 11, Article V of the Florida Constitution and this Court is without jurisdiction to review the same on direct appeal.

Therefore, we are concerned only with the conviction under the fifth count which charged: 'that John Byrd, late of the County of Hillsborough aforesaid, in the State aforesaid, on the 17th day of August A. D., 1940, with force and arms at and in the county of Pinellas, State of Florida aforesaid, did unlawfully and feloniously take, steal and carry away a certain automobile, to-wit, an Oldsmobile, the property of Tiffin Corporation, a Florida corporation, which said automobile the said John Byrd did thereafter bring into Hillsborough County, Florida, against the form of the Statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the State of Florida.'

As to this judgment appellant bases his hope of reversal upon the answers to be given by us to five questions stated as follows:

'1.Where defendant was informed against in the Criminal Court of Record of Hillsborough County, Florida, for the crime of grand larceny by having feloniously taken, stolen, and carried away an automobile in Pinellas County, Florida, and thereafter bringing said automobile into Hillsborough County, Florida, and the evidence showed only that the defendant was seen driving the automobile in Hillsborough County, Florida, was not the evidence legally insufficient upon which to base a verdict of guilty?'

'2.Where the evidence showed an automobile was stolen in Pinellas County, Florida, on August 17, 1940, and defendant was seen driving the automobile in Hillsborough County, Florida, about September 1, 1940, was such evidence legally sufficient upon which to base a verdict of guilty of grand larceny of said automobile?

'3.In a criminal prosecution for grand larceny of an automobile alleged to have been the property of a corporation, may the existence of such corporation be proved by the manager of such corporation merely testifying that it is a corporation without either producing a certified copy of the charter of such corporation or showing that such corporation was a corporation de facto exercising corporate functions and franchises and carrying on its business in the name set out in the information?'

'4.In Florida may the court in sentencing defendant to imprisonment in the State Prison provide that the sentence State Prison provide that the sentence should begin to run 'from the date of your delivery to the officers thereof'(State Prison)?'

'5.In Florida is it not necessary for the court before passing sentence on a felony to ask the defendant if he has anything to say why sentence should not be imposed upon him?And also in sentencing defendant to identify the crime for which he is being sentenced?'

The judgment and sentence appears in the record as follows:

'It is Considered, Ordered and Adjudged by the Court that the defendant, John Byrd, is guilty of aggravated assault as charged in the first count of the information; guilty of simple assault as charged in the second count of the information, and guilty as charged in the fourth and fifth counts of the information.

'Now, on this day came in person the defendant, John Byrd, and being asked by the court whether he had anything to say why the sentence of the law should not now be pronounced upon him, says nothing.'* * *

* * *

* * *

'It is therefore the Judgment, Order and Sentence of the Court, that you, John Byrd, for the crime of which you have been and stand convicted, be imprisoned in the State Penitentiary of the State of Florida at hard labor for a period of Five (5) Years, from the date of your delivery to the officers thereof, on the fifth count of the information.'

So it is that the record discloses no foundation for the contention presented by the fifth question.

As to the first stated question, the evidence shows conclusively and without contradiction that the automobile was stolen in Pinellas County; was transported to the adjoining County of Hillsborough and shortly after the larceny was seen in Hillsborough County in the exclusive possession of the defendant.The automobile was found parked with no one in it and the keys which fitted the automobile were found in the possession of the accused.No explanation of the possession of the stolen automobile was offered by the defendant.The evidence was sufficient to warrant the jury in concluding that the accused was the thief.SeeBargesser v. State,95 Fla. 401, 116 So. 11.

Question number two must be answered likewise.

The third question must be answered contrary to appellant's contention.

The name of the owner alleged in an indictment or information is first to show ownership to be in one other than the accused and, second, as a part of the description of the property.

Since the rendition of the opinion and judgment in the case of Thalheim v. State,38 Fla. 169, 20 So. 938, 947, the rule has prevailed in this State that in a case of this sort where the ownership of the alleged stolen property is alleged to be in a corporation, it is sufficient to show that the named owner carried on its business in the name set out in the indictment and that it operated its business as a corporation.In that case it was said:

'The twenty-first assignment refers to an instruction to the effect that similar proof that said company was a corporation de facto, and did business as a corporation, was sufficient proof of corporate existence.It is insisted...