Gunn v. State
| Decision Date | 13 December 1919 |
| Citation | 83 So. 511,78 Fla. 599 |
| Parties | GUNN v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Santa Rosa County; A. G. Campbell, Judge.
Charlie Gunn was convicted of larceny, and he brings error. Reversed.
Syllabus by the Court
'Where the taking is open in the presence of other, not amounting to a robbery, and there is no concealment, or, in short, where the testimony as to the taking, standing alone, raises a presumption of fact in favor of an innocent taking, and there is nothing in it from which a jury may legitimately infer a felonious purpose, then a verdict against the accused cannot be sustained, and it would be the duty of the court to set it aside.' Long v. State, 44 Fla. 134, 32 So. 870.
Where there is no testimony to show a felonious taking by the defendant, it is error for the court to charge the jury that they could infer a felonious intent from the recent exclusive possession of the property alleged to have been stolen.
Where there is conflict in the evidence as to the intent with which the property was taken, or it is of such a character as to legitimately authorize an inference of a felonious purpose then the matter should be submitted to the jury without any intimation from the trial court as to the force of presumptions of fact arising from any portion of the testimony.
Where an error is fundamental, this court will consider it without an assignment based upon it.
Where testimony is improperly admitted over the defendant's objection, this court will accept it as having been tendered by the state, and admitted by the court for the purpose of establishing some fact tending to prove the prisoner's guilt, or as having a tendency to influence the jury in reaching a conclusion of the prisoner's guilt, and where such testimony goes to the jury with the sanction of the court and a conviction is obtained, this court cannot look into the minds of the jury and determine to what extent such testimony induced the verdict, nor can we say that it had no effect and was harmless.
COUNSEL W. W. Clark, of Milton, for plaintiff in error.
Van C Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty Gen., for the State.
The plaintiff in error was convicted in the circuit court of Santa Rosa county of the larceny 'of one brass rudder one brass propeller, and one brass shaft.'
The testimony shows that these articles, together with the engine of the boat President, were taken from her by some unknown persons. The defendant in company with two other boys found the articles named in the indictment in a marsh on an island near Bagdad, in the latter part of September or first of October, and carried them to his home in Bagdad, and put them on the porch, where they remained until some time in January, when he carried them with some junk belonging to his father, to Pensacola and sold them. The engine in four parts was found in a marsh bog by Mr. Holst, the custodian of the President. The boys were on the island, looking for drift stuff, when they found the alleged stolen property. Gunn carried it to his home in the daytime, and it was shown and offered for sale to several persons by his father. It lay for over two months on the back gallery of his home, and, as testified to by Charley Huggins, it was 'open, exposed, nothing about them covered up--open for any person, who would be passing, to see them without they shut their eyes.' The boat to which these articles belonged was in the care of Mr. Holts and Charley Huggins, and the latter saw them on the back porch of the defendant's home, but never recognized them as belonging to the boat he had in charge. They were seen by several persons, and could have been seen by any one passing the house. They were carried by Gunn from Bagdad to Pensacola, unconcealed, on a boat running between these points, and were seen and examined by the engineer of the boat. Gunn sold them to the Gulf Machine Shop, and took a check in his own name in payment. While the boys were at the island and had the articles in their boat, or were engaged in putting it on, another man came up to them in his boat, talked with them, and saw the articles.
There was no concealment of the stuff on the part of the boys.
'Where the taking is open in the presence of others, not amounting to a robbery, and there is no concealment, or in short, where the testimony as to the taking standing alone raises a presumption of fact in favor of an innocent taking, and there is nothing in it from which a jury may legitimately infer a felonious purpose, then a verdict against the accused cannot be sustained, and it would be the duty of the court to set it aside.' Long v. State, 44 Fla. 134, 32...
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... ... substance the same. It varies in detail slightly, but that ... very difference may have been considered of some ... significance, and the writing may have been taken as of ... better and more reliable evidence. In any event, as was said ... by Mr. Chief Justice Browne in Gunn v. State, 78 ... Fla. 599, 83 So. 511: ... 'This ... court cannot look into the minds of the jury and determine ... to what extent such testimony induced the verdict. Nor can ... we say that it had no effect and was harmless.' ... As in ... the Gunn Case, so in this one ... ...
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