Guarino v. State, 2257
| Decision Date | 11 October 1961 |
| Docket Number | No. 2257,2257 |
| Citation | 133 So.2d 596 |
| Parties | Paul GUARINO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John R. Parkhill, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., for appellee.
The appellant, defendant below, has appealed from a judgment of conviction of breaking and entering a dwelling house with intent to commit grand larceny.
The defendant was brought to trial on an amended Information consisting of two counts: 1) breaking and entering a dwelling house with intent to commit grand larceny; and 2) grand larceny. He was found guilty by the jury as to Count One and not guilty as to Count Two. On appeal he states two points: 1) The evidence was legally insufficient to support the judgment of conviction, for it created only a suspicion of defendant's guilt. 2) There was a fatal variance between the allegations of the first count of the Information which charged that the defendant broke and entered a dwelling house, and the proof which conclusively showed that the structure had never been a dwelling house.
The record shows that during the process of construction of a dwelling house, which was being contracted for by a person who lived next door, there were an electric oven and an electric range left sitting in the living room. The theft of the oven and range took place between 1:45 P.M. and 4:30 to 5:00 P.M., on the day in question. Between these two times the defendant had driven up to the house in a blue pickup truck, got out, walked around the house and looked in the windows, and then got back into his truck and drove around the block a couple of times. About forty-five minutes later the defendant returned and parked in the driveway leading to the new house. On his second visit, the defendant was followed by a man in a green pickup truck. The two men stood and talked in the carport of the new house and then defendant came over to where a fourteen year old girl, the daughter of the owner, was standing, and asked her 'if the cement had come.' The defendant then went back to the new house and started to talk to the man who had come in the green pickup truck. This witness, the fourteen year old girl, had to leave for a dental appointment at a certain time. About two weeks later the police found the oven and range in the house of a man who was employed every now and then by the defendant and his brother. This was all the testimony which connected the defendant with breaking and entering the house and so, if a conviction were sustained on that testimony, it would be by circumstantial evidence only.
The State called the brother of the defendant as a State witness and he testified among other things, that he and the defendant, who were in the construction business together, frequently looked over other houses that were being built, and that the person, in whose home the property was found, had worked occasionally for both the defendant and himself. No testimony was put on by the defendant after his motion for directed verdict of acquittal had been denied.
The stolen property was never traced directly to the defendant. It being found in a past employee's possession no doubt created suspicion, but this suspicion, however strong, lacked sufficient probative value. In 12 C.J.S. Burglary § 50(a) it is said:
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Jones v. State
...(state's evidence deemed insufficient to link defendant to murder in love-triangle affair; murder conviction reversed); Guarino v. State, 133 So.2d 596 (Fla. 2d DCA 1961) (state's evidence deemed insufficient to link defendant to the burglary of a house; burglary conviction reversed); Herri......
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Smith v. State, 72--437
...except defendant's guilt, Lockett v. State, Fla.App.1972, 262 So.2d 253; Williams v. State, Fla.App.1968, 206 So.2d 446; Guarino v. State, Fla.App.1961, 133 So.2d 596, and must exclude any reasonable hypothesis of defendant's innocence, Forbes v. State, Fla.App.1968, 210 So.2d 246. Circumst......
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Flamer v. State
...before the presumption of guilt may arise from the joint possession. State v. Watson, Mo., 350 S.W.2d 763 (1961); Guarino v. State, Fla.App., 133 So.2d 596 (1961); Cowart v. State, 92 Ga.App. 253, 88 S.E.2d 208 (1955); Annotation 12 L.R.A.,N.S., 199, Applying the rule and its corollary in t......
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Puntasecca v. State, 63-626
...they were arrested. The appellant Franco relies upon the cases of Rivers v. State, 140 Fla. 487, 192 So. 190 (1939), and Guarino v. State, Fla.App.1961, 133 So.2d 596. He urges that in each of these cases the circumstantial evidence was not sufficient to show that the defendant was a knowin......