Cone v. State

• Decision Date: 08 December 1953
• Citation: 69 So.2d 175
• Parties: CONE v. STATE.
• Court: Florida Supreme Court

Page 175

69 So.2d 175

CONE v. STATE.

Supreme Court of Florida, Special Division B.

Dec. 8, 1953.

Rehearing Denied Jan. 20, 1954.

J. C. Adkins, J. C. Adkins, Jr., and Phillip Barton, Gainesville, for appellant.

Richard W. Ervin, Atty. Gen., and Bart L. Cohen, Asst. Atty. Gen., for appellee.

TERRELL, Justice.

Appellant was tried and convicted of larceny of an automobile. He was sentenced to serve five years in the state penitentiary and prosecuted this appeal from that judgment.

The material question urged for our consideration challenges the following instruction to the jury:

'Now with reference to the possession of recently stolen property, the unexplained possession of recently stolen goods is sufficient basis for a verdict of guilty upon a charge of larceny of such goods. So it is the law that where a party is found in possession of property recently stolen and directly offers a reasonable and credible account of how he came into such possession or such an account as will raise a reasonable doubt in the minds of the jury, who are the sole judges of its reasonableness, probability, and credibility, then it becomes the duty of the state to prove that such account is false; otherwise, there should be an acquittal. If an explanation be offered on the part of the defendant, then the question of whether the explanation is reasonable and credible is one of fact to be considered by the jury in connection with all the other facts and circumstances submitted to you in the trial of this case. The court charges you further that the account or explanation offered on behalf of a defendant who is alleged to have been found in possession of recently stolen property may be reasonable and highly plausible and yet if the jury do not believe it, they have the right to convict upon the evidence furnished by the possession of the stolen goods alone.'

Appellant contends that this instruction is not applicable to the case at bar because the record shows that it was approximately nine months from the date the automobile disappeared from the home of the owner to the date it was found at the home of defendant, and being so, the presumption that larceny or possession after the larceny was 'recent' is not applicable. Williams v. State, 40 Fla. 480, 25 So. 143, is relied on to support this contention.

It is fact that many courts hold that possession after larceny must be 'recent' to impute guilt but what constitutes 'recent' is by no means fixed time. As in many other instances it is determined by the facts of the particular case. An examination of cases in other jurisdictions supports this premise. In Van Gorder v. United States, 8 Cir., 21 F.2d 939, the Court held that possession 87 days after theft was insufficient to raise the presumption of guilt. In State v. Miller, 45 Minn. 251, 48 N.W. 401, the Court upheld refusal of the lower court to charge the jury that possession eleven months after theft would support an inference of guilt. In State v. Bartholomew, 116 Kan. 590, 227 P. 366, the Court held that possession of an automobile two weeks after it was stolen gave rise to an inference of guilt. In McHenry v. State, 52 Okl.Cr. 20, 2 P.2d 597, the Court held that possession eight months after theft, defendant being in possession of the goods, was not too remote to presume guilt. In State v. McRae, 120 N.C. 608, 27 S.E. 78, the unexplained possession of a 20 dollar gold piece, two days after theft, was not sufficient to justify a legal presumption of guilt. In State v. Jones, 227 N.C. 47, 40 S.E.2d 458, possession 20 days after theft would not support a presumption of guilt. In State v. Cameron, 223 N.C. 449, 27 S.E.2d 81, it was held that possession 8 months after theft did not give rise to a presumption of guilt. In Preston v. State, 147 Tex.Cr.R. 79, 178 S.W.2d 522, it was held that possession 15 months after theft would not support a presumption of guilt. In McGowen...