Forrest v. State

• Decision Date: 17 June 1938
• Citation: 133 Fla. 310,182 So. 849
• Parties: FORREST v. STATE.
• Court: Florida Supreme Court

182 So. 849

133 Fla. 310

FORREST v. STATE.

Florida Supreme Court

June 17, 1938

Rehearing Denied Aug. 1, 1938.

Error to Circuit Court, Hardee County; H. C. Petteway, Judge.

T. W Forrest, alias Big Boy Forrest, was convicted of buying receiving, and aiding in the concealment of stolen property knowing it to have been stolen, and he brings error.

Reversed for legal judgment and sentence.

BROWN J., dissenting in part.

COUNSEL W. D. Bell, of Arcadia, and A. Yancy Teachy, of Wauchula, for plaintiff in error.

Cary D. Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for the State.

OPINION

PER CURIAM.

Mr. Justice BROWN has prepared an opinion in this case in which he has discussed all the material questions persented here for our consideration. Therefore, we feel that it is not necessary to discuss any matter except that which involves the charge given by the Court as follows:

'In this connection the Court also charges you that the defendant would not have had to have known as an actual fact that the property was stolen property, but the State would only have to have proven to your minds beyond and to the exclusion of every reasonable doubt that the circumstances or knowledge which he possessed at the time concerning the carcass of the calf was such as to have put an ordinarily prudent man on inquiry so that if he had followed up the inquiry he would have found out that the calf was stolen property.'

We cannot agree with the conclusion that the giving of this charge when the same is considered with other charges given by the Court constituted reversible error. While the charge standing alone might warrant adverse criticism, when taken together with other charges given by the Court, we cannot say that after an examination of the entire case it appears that the error complained of has resulted in a miscarriage of justice and, therefore, under the provisions of Section 2812, R.G.S., section 4499, C.G.L., we should not now reverse the judgment under review. In other respects we concur in the opinion prepared by Mr. Justice BROWN herein.

The judgment should be affirmed and it is so ordered.

Affirmed.

WHITFIELD, TERRELL, BUFORD, and CHAPMAN, JJ., concur.

BROWN J., dissents in part.

DISSENTING

BROWN, Justice (dissenting in part).

This writ of error brings before us for review a conviction predicated on an information which charged the defendant with the offense of buying, receiving and aiding in the concealment of stolen property, to-wit, the carcass of a calf, the property of L. F. Carlton, a better description of which property being unknown to the State's Attorney, knowing the same to have been stolen, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Florida.

The jury rendered a verdict of guilty and the defendant was sentenced to two years in the State Penitentiary. The plaintiff in error has submitted eight questions of law for our consideration. The first, second and eighth questions all involve practically the same proposition so we deem it expedient to discuss them together. gether.

'1. Is an information under Section 7239, C.G.L. for receiving stolen property, such property not being livestock or any of the special kinds of property wherein value is immaterial, sufficient, which fails to allege the value of the property received?'

'2. Is a verdict upon an information under Section 7239, C.G.L. wherein the property described is not any of the kinds of special property wherein value is immaterial, sufficient, that fails to find the value of said property?'

'8. Is a judgment for receiving stolen property that does not adjudge the value of such property, when the property in controversy does not belong to any of the special classes to which the allegation of value is immaterial, sufficient, that does not adjudge the value of said property?'

Section 7239, C.G.L., provides that:

'Whoever buys, receives or aids in the concealment of stolen money, goods or property, knowing the same to have been stolen, shall be punished by imprisonment in the State prison not exceeding five years, or by fine not exceeding five hundred dollars.'

And Section 7240, C.G.L., makes the following provision:

'Upon a first conviction under the preceding section, and when the act of stealing the property is not by law a felony, if the party convicted of buying, receiving or aiding in the concealing of such stolen property, makes satisfaction to the party injured to the full value of the property stolen and not restored, he shall not be imprisoned in the State prison, but may be liable to such additional punishment as the court may direct.'

An examination of the above quoted section 7239, C.G.L., will reveal that the receiving of stolen property, knowing it to have been stolen, is a felony, regardless of the value of the property. See Broxson v. State, 99 Fla. 1187, 128 So. 628. The value of the property not being an element of the offense, it is unnecessary for the State to allege or prove the value of the stolen property. Broxson, v. State, supra.

The only useful purpose that a finding of the value of the property would serve would be to enable the defendant to take advantage of Section 7240. In the present case, it does not appear from the record that the defendant made any attempt to take advantage of this section. No instructions were requested of the court, nor was the court asked to have the jury find the value of the property involved; nor were any objections made to the court for failing to instruct the jury to find the value of the 'carcass'. The defendant did not introduce any testimony to show its true value; nor does it appear that the defendant attempted to make satisfaction, or requested the court for an opportunity to do so.

The defendant's attorney on this appeal quotes at length from the case of Alvarez v. State, 75 Fla. 286, 78 So. 272. Mr. Justice Ellis, now Chief Justice of this Court, in his opinion discusses this statute at length, but that case is not in point with the present case for the reason that in the Alvarez Case the court was requested to instruct the jury to find the value of the goods stolen and received by defendant. The court in that case refused the requested instruction and the defendant excepted. Even that case does not lay down the proposition that the court must instruct the jury to find the value of the goods. It was said in that opinion (page 274):

'We think the safer course would have been to require the jury to specify in their verdict the value of the goods stolen which the defendant culpably received. It is unnecessary to decide the point, however, as the judgment must be reversed because of errors committed in admitting and rejecting evidence.'

In view of the fact that the defendant below did not seek to avail himself of the section 7240 by introducing evidence of the value of the property or by requesting the court to instruct the jury to find the value of the property, we do not feel that the court erred in not instructing the jury, on its own motion, to find the value of the property.

The next questions are based upon instructions given by the court;

'3. Under an information under Section 7239, C.G.L. may the accused be convicted if he did not know at the time or receiving the alleged property that the same was stolen?'

'4. If the accused did not know that the property was stolen is it the law that he should be convicted if the circumstances were such as to put an ordinary reasonable or prudent person upon inquiry as to the fact that it was stolen property?'

These two questions are based on the following charge given by the lower court:

'In this connection the Court also charges you that the defendant would not have had to have known as an actual fact that the property was stolen property, but the State would only have to have proven to your minds beyond and to the exclusion of every reasonable doubt that the circumstances or knowledge which he possessed at the time concerning the carcass of the calf was such as to have put an ordinarily prudent man on inquiry so that if he had followed up the inquiry he would have found out that the calf was stolen property.'

This Court as late as the case of Johnson v. State, 127 Fla. 100, 172 So. 708, has said (page 709):

'It is essential to a conviction for receiving stolen property that the evidence shall show to the exclusion of a reasonable doubt that the accused had knowledge that the property in puestion was stolen at the time he received it, or that the circumstances of the transaction were sufficiently suspicious to put a person of ordinary intelligence and caution upon inquiry.' (A number of our former decisions are cited.)

On first inspection, this charge appears to be in line with the language used in a number of our former decisions, but in reality it raises a new question which apparently has not hitherto been specifically ruled upon by this Court. While the learned trial judge is not to be criticised for giving this charge, we nevertheless deem it to be erroneous. It confuses the substantive law as to one of the constituent elements of the offense denounced by the statute with the matter or the evidence which, if so considered by the jury may be sufficient to sustain the proof of that element of the offense. The statute (section 7239) plainly says that 'Whoever buys, receives or aids in the concealment of stolen money, goods or property, knowing the same to have been stolen, shall be punished' as therein provided. So, knowledge on the part of the accused that the property bought, received or concealed was stolen property is expressly made by the statute an element of the offense. The courts have no power...