Green v. State
| Decision Date | 12 October 1938 |
| Citation | 134 Fla. 216,183 So. 728 |
| Parties | GREEN v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; E. C. Welch, Judge.
A. D Green was convicted of stealing seven hogs, and he brings error.
Reversed.
COUNSEL John C. Wynn, of Marianna, for plaintiff in error.
George Couper Gibbs, Atty. Gen., and H. E. Carter, Asst. Atty. Gen for the State.
To an information, which was as follows:
'John H. Carter, Jr., as State Attorney for the 14th Judicial Circuit of the State of Florida, prosecuting for said State, in the County of Jackson, under oath information makes that A. D. Green on August 20, 1937, in said County and State, unlawfully did steal, take and carry away seven hogs, the property of Elijah Tyus, with the intent to deprive the owner of his property therein; contrary to the statute in such case made and provided, and against the peace and dignity of the State of Florida;' the defendant plead not guilty and on trial was convicted and adjudged to be guilty and thereupon sentenced to serve two years in the State Prison at hard labor.
The record shows that of the seven hogs alleged to have been stolen two of them were found in possession of one Carlos Conrad and five were found in possession of one Paul Hall.
The record shows that two of the hogs came from a bunch that were 'raised' about one place and that the others were raised about another place. In other words, the two hogs found in possession of Conrad were out of one bunch of hogs and the five found in possession of Hall were out of another bunch of hogs.
The record shows that the two hogs found in possession of Conrad were found by the alleged owner on September 19, 1937, and that the five hogs found in possession of Paul Hall were located by the owner in Hall's possession on October 1 1937. Neither transaction appears to have had anything to do with the other.
The record shows that if larceny was committed of the seven hogs it was committed by asportation of two hogs from one place and five hogs from another place. When this developed in the record defendant, through his counsel, moved the court to require the states attorney to elect which transaction he would rely on for conviction. The court denied the motion.
In the light of the record this became a matter of paramount importance in this case.
The rule appears to be well settled that where property is stolen from the same owner from the same place by a series of acts, if each taking is a result of a separate independent impulse it is a separate crime. See 36 C.J. 798, and cases there cited; also Hamilton v. State, 129 Fla. 219, 176 So. 89, 112 A.L.R. 1013. It is also settled that if articles belonging to different owners are taken at different times or from different places it must be held that each taking is a distinct and independent larceny. 36 C.J. 800, and cases there cited.
In Lunn v. State, 44 Tex. 85, it was held:
'When two distinct offenses are charged in an indictment or developed by the evidence, the district attorney should be required to elect on which of the charges he intends to claim a conviction, as soon as he has examined the witnesses far enough to identify the transaction, and in all cases the election must be made before the accused offers his testimony.'
To like effect was the holding in Mazureczk v. State, 59 Tex.Cr.R. 211, 128 S.W. 136. And also to like effect is the holding in the case of Herring v. State, 16 Ala.App. 98, 75 So. 646, 647, and in State v. Crimmins, 31 Kan. 376, 2 P. 574.
The reason for the rule is demonstrated in the instant case.
There is no evidence to show that the alleged five stolen hogs found in possession of Hall...
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...offenses it was relying upon. * * *' This Court's judgment was couched in the following language: 'Judgment is reversed.' The case of Green v. State, supra, involved a single count of grand larceny for the asseverated theft of seven hogs allegedly belonging to the same owner. The proof at t......
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