Cross v. State

• Decision Date: 17 June 1970
• Docket Number: Nos. 69--481--69--483,s. 69--481--69--483
• Citation: 237 So.2d 324
• Parties: Robert CROSS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 324

237 So.2d 324

Robert CROSS, Appellant, v. STATE of Florida, Appellee.

Nos. 69--481--69--483.

District Court of Appeal of Florida, Second District.

June 17, 1970.

Rehearing Denied July 17, 1970.

Robert E. Jagger, Public Defender, and James L. DeMoully, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Michael N. Kavouklis, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

Appellant Robert Cross appeals to this Court from separate judgments of conviction entered against him after adverse jury verdicts in the foregoing three cases, each charging grand larceny.

In appeal case No. 69--481 Cross was sharged with larceny of $200.00 on December 11, 1968, from John G. and Sevasti K. Karavas, d/b/a Carousel Gift Shop. In appeal case No. 69--482 he was charged with larceny of $327.05 on December 5, 1968, from John and Catherine Billiris, d/b/a Catherine's Linen Shop. In appeal case No. 69--483, he was charged with larceny of $300.00 on December 31, 1968, from the Billirises d/b/a Catherine's Linen Shop. The case involving Carousel Gift Shop was tried on June 20, 1969. The two cases involving Catherine's Linen Shop were tried on June 30, 1969. Cross was convicted by jury verdicts in all three cases. Adjudication of guilt was withheld in all cases. Cross was released on probation for a period of three years. Cross has appealed each case separately to this Court but they have been consolidated for disposition here.

The facts developed at the trials are simple and without material conflict. Sevasti Karavas and Catherine Billiris were sisters and, together with their husbands, each named John, owned and operated a gift shop and a linen shop respectively. The two shops were customers of Textile Prints of Florida, for which firm Cross was a travelling salesman.

On December 12, 1968, Mrs. Karavas, in payment of her account with Textile Prints, gave Cross a check payable to him in the sum of $200.00, which check Cross cashed at the First Bank of Gulfport the following day and pocketed the proceeds.

On December 5, 1968, Catherine Billiris gave Cross a check for $327.05 in payment for merchandise from Textile Prints. The check was written out by Cross and he made it payable to himself. On December 31, 1968, John Billiris gave Cross a check for $300.00 to apply on Billiris' account with Textile Prints. The check was made in favor of Cross, who immediately cashed the check at a Gulfport bank and again pocketed the proceeds.

None of the checks or the proceeds thereof ever reached Textile Prints. Cross never told any of the shop owners he was going to cash the checks personally. On the contrary, all three checks were given to Cross with the express understanding that they were to be turned in to Textile Prints to apply on the shop owners' accounts. The shop owners never received credit for any portion of the three checks.

Cross makes two contentions here for reversal: (1) that both of the shop-owning partners in each check transaction, instead of only one, should have testified in order to show non-consent of both partners in each instance, and (2) that under the facts in evidence, ownership of the check proceeds should have been laid in Textile Prints rather than the shop owners. We disagree and affirm, but will briefly discuss each contention.

(1) Sufficiency of evidence as to non-consent of both partners in each transaction.

In appeal case No. 69--481 where ownership of the money was laid in John G. and Sevasti K. Karavas, only the wife, Sevasti K. Karavas, testified to the loss of the money and the non-consent to the taking. In appeal case No. 69--482 ownership and non-consent was laid in John and Catherine Billiris, but only John Billiris testified. In appeal case No. 69--483 ownership and non-consent was likewise laid in the two Billirises but only John Billiris testified.

Cross contends that because only one of the co-owners of the respective businesses testified as to the loss in each transaction that the prosecution must fail because of the failure of the evidence to show nonconsent of the co-owner in the respective transactions not testifying. This contention is untenable.

Cross relies upon Albritton v. State, 1921, 81 Fla. 684, 88 So. 623, a case decided 49 years ago. In Albritton, the larceny alleged was 'of one cow, the property of' six named persons, all heirs of a prior decedent. Three of the heirs testified to non-consent of the taking of the cow and the other three heirs did not testify. The Supreme Court held that 'the nonconsent of the owner must be proved, as it cannot be presumed from the taking'. However, the opinion recites that 'the cow alleged to have been stolen was one of a number of range cattle belonging to the Towles heirs named in the indictment, and it does not appear from the testimony that the stock of cattle was in the exclusive custody and control of any one of the owners, or of any other person'. Thus Albritton is clearly distinguishable. The property stolen was only alleged as 'one cow, the property of' six named owners, as heirs of an estate, and the 'cow' was only one 'of a number of range cattle' in the herd belonging to all of them. It is thus obvious that Albritton, the sole defendant charged and convicted, could not have been protected against double jeopardy. No such facts exist in the case sub judice, nor facts analogous thereto. Here each case involves only one check and in each instance the check was signed only by the co-owner who testified. But even so the opinion in Albritton goes further and says that the non-consent of a co-owner 'may be proved by circumstantial evidence, provided the circumstances are such as to exclude every reasonable presumption that the owner consented.' Thus it must be presumed, certainly in the absence of countervailing testimony to the contrary, that the absent co-owner here did not consent to the taking of the money.

It is true that in each of the transactions involved here the absent co-owner not only did not testify, but it was not shown by the evidence adduced why he was not present--in other words, his absence was not explained--a fact which Albritton indicated was essential if he did not appear and testify. But the Supreme Court in Johnson v. State, 1946, 157 Fla. 328, 25 So.2d 801, overruled any such requirement, whether dicta in Albritton or not. In the Johnson case, the defendant, one Sparks Johnson, was convicted of larceny of 'several cases of whisky' owned by one Davis and one Scott, who jointly operated a liquor package store. Only one of the owners testified to ownership of the whisky and non-consent to the taking. The holding in Albritton, last adverted to, was relied upon on appeal to reverse the conviction. Discarding such contention, our Supreme Court in Johnson held (25 So.2d text 803):

'We are not disposed to apply in cases of this nature the rule evidently adopted in Albritton v. State, supra, that the state may resort to circumstantial...