Cordell v. State
| Decision Date | 08 January 1946 |
| Citation | 157 Fla. 295,25 So.2d 885 |
| Parties | CORDELL v. STATE. |
| Court | Florida Supreme Court |
Rehearing Granted March 22, 1946.
John Cordell was convicted of larceny, and he appeals.
Reversed and new trial awarded.
Appeal from Circuit Court, Santa Rosa County; L. L. Fabisinski judge.
Coe & Eggart, of Pensacola, for appellant.
J. Tom Watson, Atty. Gen., and George M. Powell, Asst. Atty. Gen for appellee.
Judgment affirmed.
On Rehearing Granted.
The appellant, John Cordell, was informed against, placed upon trial, and convicted by a jury in Santa Rosa County, Florida, for the larceny of one spotted Poland-China boar hog, the property of B. O. Jernigan. He was by the trial court sentenced to serve a term of three years in the Florida State Prison. The record discloses that within the time fixed by statute a motion for a new trial was made on the sole ground that the verdict of the jury was against the evidence. The trial court denied the motion and the defendant appealed.
The only question for adjudication here is the sufficiency of the evidence adduced by the State of Florida in the trial of the cause in the court below to sustain the verdict and judgment challenged here on appeal. Larceny is the felonious taking and carrying away from any place the personal property of another, without his consent, by a person not entitled to the possession thereof, with the intent to deprive the owner of the property and to convert it to the use of the taker or to some person other than the owner. Brent v. State, 127 Fla. 626, 173 So. 675; Kemp v. State, 146 Fla. 101, 200 So. 368. It is essential, in order to sustain a conviction of larceny, that the evidence adduced by the State establishes beyond a reasonable doubt that the property was taken animo furandi. Helton v. State, 135 458, 185 So. 864; Cooper v. State, 82 365, 90 So. 375; Jarvis v. State, 73 652, 74 So. 796.
It is fundamental law and well established in Florida that a person charged with crime is entitled to the presumption of innocence. The burden of proof of every essential element of the crime by law is cast upon the State of Florida and this presumption of innocence accompanies a defendant through each step of the trial until the same is overcome by testimony establishing the guilt of the accused beyond a reasonable doubt. Roe v. State, 96 Fla. 723, 119 So. 118; Savage v. State, 152 Fla. 367, 11 So.2d 778. If a reasonable doubt exists in behalf of an accused arising from a consideration of all the evidence adduced during the progress of the trial or the lack of such evidence, then a conviction under such conditions and circumstances as a matter of law cannot be sustained. Baggett v. State, 94 Fla. 252, 114 So. 236.
The record discloses conflicts and disputes as to the ownership of one black and white spotted Poland-China boar hog, which at the time of the trial was in a truck near the court house and was the subject of a replevin suit (not then tried) between the complaining State witness, B. O. Jernigan, and John Cordell, the appellant here. Jernigan and Cordell were farmers and lived in the same community in Santa Rosa County for some time prior to early 1945. Each of them acquired during the year 1943 by purchase a pure blooded Poland-China boar pig or shoat for stock purposes. Mr. Jernigan acquired his during January, 1943, from a Mr. McCaskell of Jay, Florida, when it was about two months old and weighed sixty pounds. He took it to his farm situated near the farm of Cordell and never marked it, but permitted it to go on the open range about his farm. In the record there is but little, if any, testimony that is in conflict with Mr. Jernigan's testimony supra, or with the State witnesses about the purchase and raising of the black and white spotted boar pig.
The record discloses further that in October, 1943, Claude Moody of Covington County, Alabama (not far from Santa Rosa County), let Mr. Cordell have a black and white spotted Poland-China boar pig for stock purposes. The pig or shoat at the time weighed some fifty or sixty pounds. The age of the shoat at the time Mr. Cordell acquired it is not clear, but apparently was around two or three months old in October, 1943. The shoat was kept about the farm of Mr. Cordell after October, 1943. The exact distance between the farms of Mr. Jernigan and Mr. Cordell is not shown, but we infer that they lived in the same community about a mile or so apart. Mr. Jernigan permitted his stock hog to run at large, while Mr. Cordell kept his in an enclosure. There is no dispute or claim that Mr. Jernigan did not own such a stock hog or that Mr. Cordell did not own such a stock hog.
There is no dispute about Mr. Jernigan spending considerable time in keeping up with or hunting in the neighborhood for his stock hog, which he permitted to run at large. It is quite true that about December, 1944, Mr. Jernigan took his stock hog out of the peanut field where Mr. Cordell kept his hogs. There is no dispute that Mr. Cordell at the time owned other hogs and that he had some in a pen when Mr. Jernigan got his stock hog out of the Cordell peanut field. The disputes and conflicts in the evidence center about the identity of the hog found in Mr. Cordell's possession after he moved to another farm a few miles from the Jernigan community.
Mr Jernigan searched the range for his stock hog in late 1944 or early 1945 without finding him, and as a part of the search went to the place where Mr. Cordell moved some few miles away. There in a pen on the Cordell place Mr. Jernigan found a hog which he identified as his, and with equal candor and sincerity Mr. Cordell asserts that the same hog is his property. A truck driver moving the Cordell hogs testified that he hauled several hogs for Mr. Cordell and the one in question resembled one he hauled from the Jernigan community to the Cordell home some few miles away. The State witnesses either identified the hog as the property of Jernigan or as resembling it very much, while Mr. Cordell and his witnesses...
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