Dean v. State

• Decision Date: 16 May 1899
• Citation: 41 Fla. 291,26 So. 638
• Parties: DEAN v. STATE.
• Court: Florida Supreme Court

26 So. 638

41 Fla. 291

DEAN v. STATE.

Florida Supreme Court

May 16, 1899

Error to circuit court, Jackson county; Evelyn C. Maxwell, Judge.

Mose Dean was convicted of larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. In all cases where one in good faith takes another's property under claim of title in himself he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the same is true where the taking is on behalf of another, believed to be the true owner. Still, if the claim is dishonest,--a mere pretense,--it will not protect the taker.

2. In charges of larceny, where the taking is open, and there is no subsequent attempt to conceal the property, and no denial but an avowal, of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convicing evidence before a conviction is authorized.

3. Under the provisions of chapter 4026. Acts 1890-91, where the primary penalty imposed for crime is a fine and the costs of prosecution only, the imprisonment for nonpayment of such fine and costs should be in the county jail, instead of the state peniteniary.

COUNSEL John H. Carter, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR, C.J.

At the spring term, 1898, of the circuit court of Jackson county the plaintiff in error was convicted of the crime of larceny of an ox, and was sentenced to pay a fine of $150 and costs and, in default in the payment thereof, that he be confined at hard labor in the state penitentiary for the period of six months. A reversal of this judgment is sought by writ of error.

The only error assigned and urged is that the evidence was not sufficient to sustain a conviction. The defense set up was that the ox alleged to have been stolen was not taken with the animo furandi necessary to the crime of larceny, but was taken with a bona fide belief on the part of the defendant that the ox belonged to him, and that he had a right to take it. Some of the testimony for the state, and the evidence for the defendant, tended strongly to sustain such defense. It showed that the defendant took the ox about midday, openly in the presence of several persons, whose assistance he procured in capturing it, asserting at the time that the animal was his property, and that he led it off on the public highway to his home in the neighborhood; that he sold it shortly afterwards to another party in the same neighborhood and the party to whom he sold it worked and drove it around in the neighborhood where the prosecuting and alleged owner lived, frequently driving it to a small town, where the prosecuting and alleged owner had his home. Several witnesses, and the defendant himself, swear positively that the animal belonged to the defendant; that he had raised it from a calf, and still owned its mother. The alleged owner and prosecuting witness testified simply that the animal belonged to him; that he had missed it for about a year, and that when it voluntarily came up to his place it had a bell on, and that one of his employés turned it into his inclosure; that shortly afterwards the defendant's wife and several other parties came to his place, and, after looking at the animal in his pasture, laid claim to the ox as being the property of the defendant. The bell that the animal had on when it came up to the prosecutor's place was shown to belong to the party to whom the defendant had sold the ox. There was no evidence tending to show any concealment on the part of the defendant either...