Canada v. State, 2800

• Decision Date: 04 April 1962
• Docket Number: No. 2800,2800
• Citation: 139 So.2d 753
• Parties: George H. CANADA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 753

139 So.2d 753

George H. CANADA, Appellant, v. STATE of Florida, Appellee.

No. 2800.

District Court of Appeal of Florida, Second District.

April 4, 1962.

Miles C. McDonnell of Gilman & McDonnell, Winter Park, for appellant.

Richard W. Ervin, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

SHANNON, Chief Judge.

Reversal is sought of an adjudication of guilty, based on a jury verdict, of cattle stealing, an offense condemned by Sec. 811.11, Fla.Stat., F.S.A. The defendant was sentenced to serve a three year term at hard labor in the state prison.

Testimony of the factual occurrences leading up to the arrest of defendant was conflicting in material respects. Essentially, however, it appears that on the day in question, the defendant was working with his father who had been hired to build fences on the Deseret Farms in Brevard County. Later the same day, the defendant was arrested in his pickup truck by sheriff's deputies who found the carcasses of two slaughtered beefs in the truck. According to the testimony of the defendant, he and his father were working together on a section of fence on the morning of the day in question. At about 11:00 A.M., the defendant went over to his pickup to begin preparing lunch, when he was approached by Dave Hawkins, the assistant manager of Deseret Farms. The defendant testified that Hawkins said to him, 'I got a couple of beef down on East Point, at the East Point Pens that I have got to butcher out, and I want you to get the truck and go down there with me to get them.' Hawkins was then informed that he would have to clear this arrangement with the defendant's father. Defendant then testified that his father and a Mr. Sowell walked up and that Hawkins secured the permission of the elder Canada for the defendant to help him as requested. The defendant stated that he left the job at about 2:00 P.M. to pick up some equipment for the proposed butchering, with the understanding that he would meet Hawkins later at the agreed place.

Some time after his return to the East Point Pens, defendant testified, Hawkins arrived and that he, the defendant, shot and killed the two steers; and that they were loaded onto the truck by him and Hawkins with the aid of a winch. Then Hawkins told the defendant that he was going to be delayed and instructed defendant to '* * * go to Danny Platt's and see if you can get him to help you until I can get there.' It was there that defendant was apprehended by the two deputies, who later obtained a statement from him which was admitted into evidence at the trial.

The defendant's testimony regarding the receipt by him of the aforementioned instructions from Hawkins was corroborated by the testimony of his father, Homer Canada, as well as by that of William Sowell, another of Homer Canada's employees. The testimony of Hawkins was in direct conflict with that of the defendant, his father, and Sowell. It is obvious, therefore, that the defense in the instant trial was based on the testimony that he had no intention of stealing the cattle, but that his actions were the result of instructions received from the agent of the owner of the cattle.

At the conclusion of the trial, the judge instructed the jury, inter alia, '* * * that if you believe from the evidence, beyond any reasonable doubt, that the defendant, George H. Canada, was in the County of Brevard, and State of Florida, on the 18th day of October, 1960, aforesaid, did then and there steal, take and carry away the personal property to-wit, two steers as alleged in the information, or at any time within two years prior to the filing of the information in this case, you will then find the Defendant guilty as charged. If you do not so believe, or if you have a reasonable doubt about it, you will find the Defendant not guilty.'

In his appeal, the defendant raises three points, only one of which we shall discuss in this opinion. The defendant challenges the portion of the lower court's instruction to the jury, set out above, on the ground that it was prejudicial to him because of its insufficiency with regard to the element of intent. It is noted from the record that no motion for new trial was filed in this case, and it further appears that defense counsel made no objection concerning the giving or refusal of instructions before the jury retired.

Sec. 920.05(g), Fla.Stat., F.S.A., provides that where the substantial rights of a defendant have been prejudiced, the court shall grant a new trial where it is established '[t]hat the court has misdirected the jury on a matter of law or has refused to give proper instruction requested by the defendant.' Sec. 918.10(4) provides that '[n]o party may assign as error or grounds of appeal, the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'

The defendant argues on appeal that notwithstanding the fact that no motion for new trial was filed in this cause, the insufficiency of the instruction was fundamentally prejudicial to his substantial rights as to warrant review by this court. The state on the otehr hand, maintains that this question was not preserved for appeal and that, furthermore, the...