Groover v. State

• Decision Date: 17 December 1921
• Citation: 82 Fla. 427,90 So. 473
• Parties: GROOVER v. STATE.
• Court: Florida Supreme Court

90 So. 473

82 Fla. 427

GROOVER v. STATE.

Florida Supreme Court

December 17, 1921

Error to Circuit Court, Leon County; E. C. Love, Judge.

S. C Groover, alias S. C. Grover, was convicted of the larceny of an automobile, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Felonious intention to deprive owner permanently of property is an essential element, which is a question for the jury. The intention to feloniously deprive the owner permanently of his property at the time of the taking is an essential element in the crime of larceny, and whether such intention existed is a question of fact for the jury.

Where defendant offers evidence that the taking was under claim of title, a presumption arises that it lacked necessary elements of larceny. In a prosecution for larceny where the defendant offers evidence that the taking was in good faith under a claim of title in himself, a presumption of fact arises in his favor that the taking lacked the elements necessary to constitute larceny.

To constitute offense property need not be taken for motives of gain. It is not necessary to constitute the offense of larceny that the person taking the property should do so from motives of gain; an intention to deprive the owner of it permanently is alone sufficient when the taking was by stealth and unlawful.

Defendant may not complain of charge in his favor more liberal than the law allows. A charge to the jury which may be more liberal than the law requires, but in favor of the defendant, will not be considered cause for reversal of the judgment.

Evidence held to show lack of owner's consent to taking. Evidence examined and found sufficient to show lack of consent to the taking.

Refusal of requested instructions on matters covered by general charge is not error. It is not error to refuse instructions requested quested by the defendant when such instructions are fully covered by the general charge.

Inapplicable charges properly refused. Charges inapplicable to the evidence are properly refused.

Defendant's confession may be considered with other evidence to establish corpus delicti. In a prosecution for larceny the corpus delicti cannot be proved by the confession of the defendant but such confession may be considered in connection with other evidence to establish it.

July has no lawful authority to recommend mercy. A recommendation by the jury to mercy in a prosecution for larceny is without authority of law and cannot be considered by the court as a circumstance of any significance affecting the weight which the jury gave to the evidence or the credibility of the witnesses.

COUNSEL

W. C. Hodges and Fred H. Davis, both of Tallahassee, for plaintiff in error.

Rivers H. Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen for the State.

OPINION

ELLIS J.

The plaintiff in error, hereinafter referred to as the defendant, was indicted, tried, and convicted in the circuit court for Leon county for the larceny of an automobile alleged to be the property of H. V. Maund. It is contended in behalf of the defendant that the evidence was insufficient to show those elements in the offense of larceny described as the animus furandi and lucri causa. The intention to steal, that is, feloniously to deprive the owner permanently of his property at the time of the taking, is an essential element in the crime of larceny, and whether such intent existed is a question of fact to be determined by the jury from all the facts of the case. See Hendry v. State, 39 Fla. 235, 22 So. 647; Long v. State, 44 Fla. 134, 32 So. 870; Jarvis v. State, 73 Fla. 652, 74 So. 796.

The rule announced in the case of Dean v. State, 41 Fla. 291, 29 So. 638, 79 Am. St. Rep. 186, that where one in good faith takes another's property under claim of title in himself, however puerile or mistaken the claim may be, is exempt from the charge of larceny, is not, as was said in Long v. State, supra, a rule of law to be given in charge to a jury in a prosecution for larceny, but a presumption of fact which the jury may apply and which may guide the court in cases where it is applicable in determining the sufficiency of the evidence to support the verdict of guilty. And in Finlayson v. State, 46 Fla. 81, 35 So. 203, this court speaking through Mr. Justice Cockrell approved the doctrine announced by a trial court in a charge given in a prosecution for larceny that----

'A bailee who has lawful possession cannot commit larceny; the possession, however, must have been originally obtained lawfully and without the intent to appropriate the property to his own use; one who obtains the possession appropriates it,' and said 'The fraud to appropriate the property to his own use, the owner intending to part with the possession only, commits larceny when he subsequently appropriates it,' and said 'The fraud vitiated whatever right might otherwise have been acquired by virtue of the apparent voluntary parting with the possession by those rightfully entitled thereto. Such act was at the common law larceny, and no statute was needed to make it a crime; nor does it come within our embezzlement act.'

See, also, Synes v. State, 78 Fla. 167, 82 So. 778. And in the case of Lowe v. State, 44 Fla. 449, 32 So. 956, 103 Am. St. Rep. 171, speaking through Mr. Justice Carter, the court said:

'That a taking by the voluntary consent of the owner or his authorized servant or agent, even though with a felonious intent, does not constitute larceny. But where the criminal design originates with the accused, and the owner does not in person or by an agent or servant suggest the design nor actively urge the accused on to the commission of the crime' such conduct does not amount to consent in law.

To discuss the circumstances of the taking of the automobile by the defendant would result in no elucidation of his real purpose in taking it away. The owner had authorized him to use the machine while they were jointly interested in some business activities in Leon county, but no authority had been given him to take the automobile out of the state. The defendant said he thought there was no harm in taking it away as he intended to return it, but whether that statement was true was a question of fact for the jury to decide from all the facts in the case. The defendant obtained possession of the car from Mr. Fleming, a business associate of the owner; but the defendant did not tell Fleming where he was going nor when he would return. He called for his wife at the hotel, and together they traveled to the state of Georgia, going first to Valdosta and thence to Atlanta, and from there they went to the state of North Carolina. During the trip and while in the state of Georgia, he substituted, for a license tag which was originally placed on the car in Florida by the owner, a license tag which he found on the roadside upon an abandoned automobile. He said that he wrote to the owner telling of his whereabouts and purpose, but that letter was never received. He said he told the officer in North Carolina that the car belonged to Mr. Maund, but he made no such disclosure until he was either actually in the custody or upon the eve of arrest for the violation of some law of North Carolina. The jury, considering the inconsistency and inherent weakness and improbability of the defendant's story, concluded that he obtained possession of the automobile by deceit, having already formed the intention to steal it and deprive the owner permanently of it.

We think the evidence was amply sufficient to support the finding; but, even if we were doubtful of its sufficiency, we could not under the rule obtaining in this state substitute such doubt for the affirmative finding of the jury concurred in by the trial court who denied the motion for a new trial. As to the element described as lucri causa, that is, on account of gain, it was a phrase borrowed from the Roman law and 'according to the weight of authority the felonious intent required for larceny' was not necessarily an intent to gain advantage, an intent to deprive the owner of his property was enough. See 25 Cyc. 53; Rosc. Crim. Ev. 526; Williams v. State, 52 Ala. 411; Best v State, 155 Ind. 46, 57 N.E. 534; 2 Bishop's Criminal Law, §§ 842, 843, 846, 848; Clark's Criminal Law, p. 267; Delk v. State, 64 Miss. 77, 1 So. 9, 60 Am. Rep. 46; State v. Davis, 38 N. J. Law, 176, 20 Am. Rep. 367; State v. Caddle, 35 W.Va. 73, 12 S.E. 1098. There is much difference of opinion as to whether a necessary element of the crime of larceny at common law was the existence, on the part of the accused at the time of the taking, of a desire for gain. The differences may grow out of the meaning which the term 'lucri causa' had in the Roman law. Undoubtedly the 'taint of selfish greed' in the taker distinguishes the act from a mere trespass and is actually present in every larceny, but the degree of selfish greed may be ever so slight to satisfy the doctrine. The term 'animo furandi' is the expression used in the common law as the equivalent of the Roman civil law term 'lucri causa.' Blackstone says the 'taking and carrying away must also be felonious, that is, done animo furandi, or, as the civil law expresses it, lucricausa.' The true view, says Mr. Bishop, where the rule of lucri causa is conceded, is simply that the taker should mean some advantage to himself in distinction from mischief to another. While the taking of property for temporary use only may amount only to a trespass, yet it is not of itself inconsistent with an intent wholly to deprive the owner of it and therefore does not seem necessarily to negative the felony. It is, said the Supreme Court of New Jersey speaking through Mr. Chief Justice Green, simply a piece of evidence which the jury may...