Gustine v. State
| Citation | 97 So. 207,86 Fla. 24 |
| Parties | GUSTINE v. STATE. |
| Decision Date | 13 June 1923 |
| Court | United States State Supreme Court of Florida |
Error to Criminal Court of Record, Hillsborough County; Lee J Gibson, Judge.
Leroy Gustine was convicted of feloniously attempting to steal one Ford touring car, and he brings error.
Reversed.
Syllabus by the Court
Facts in proof must exclude every other rational conclusion than that of guilt. If the facts in proof are equally consistent with some other rational conclusion than that of guilt, or if the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another such evidence cannot amount to proof, however great the probability may be.
Schackleford & Shackleford, of Tampa, for plaintiff in error.
Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.
By information filed in the criminal court of record of Hillsborough county, plaintiff in error was charged with the crime of feloniously attempting to steal one Ford touring car. The charge as contained in the information is as follows:
'That Leroy Gustine, late of the county of Hillsborough aforesaid, in the state aforesaid, on the second day of September in the year of our Lord one thousand nine hundred twentyone at and in the county of Hillsborough, aforesaid, did unlawfully and feloniously attempt to take, steal, and carry away one Ford touring car, engine No. 5329502, the same being a gasoline motor propelled vehicle, a further description of the same being to the solicitor unknown, of the value of five hundred dollars in money current of the United States of America, the property of Avon J. Peacock, and in furtherance of said attempt, the said Leroy Gustine did, then and there disconnect the properly installed electric wiring for the ignition system and make or attempt to make a circuitous wiring around the properly installed ignition system for the purpose of starting said touring car without regard to the locked condition of the regularly installed ignition system, and with the intent aforesaid, in furtherance of said attempt, did get in said car and try to start the engine, but before said car could be taken away by the said Leroy Gustine, the said Leroy Gustine was then and there intercepted in said act and prevented from committing said larceny, against the form of the statute in such cases made and provided.'
The verdict, upon a trial of the issue made by plea of not guilty to this information, was guilty as charged. To review the judgment pronounced, writ of error was taken from this court.
There was a motion for a new trial, which was denied. This ruling is assigned as error. The ground of the motion to which the argument of counsel for plaintiff in error is addressed, is the alleged insufficiency of the evidence to support the verdict.
What acts will constitute an 'attempt' to commit a crime is often difficult of determination. Of necessity, each case must be determined on its own facts. Generally, there must be an intent to commit a crime, coupled with an overt act apparently adapted to effect that intent, carried beyond mere preparation, but falling short of execution of the ultimate design. Bouvier's Law Dict. (3d Rev.) vol. 1, title 'Attempt'; 8 R. C. L. 276; 1 Wharton's Crim. Law (11th Ed.) § 212; McClain's Crim. Law, § 222; 3 Am. & Eng. Enc. of Law (2d Ed.) 250; Morton v. State, 72 Fla. 265, 73 So. 187; Hogan v. State, 50 Fla. 86, 39 So. 464, 7 Ann. Cas. 139; Graham v. People, 181 Ill. 477, 55 N.E. 179, 47 L. R. A. 731.
One of the essential elements of larceny is an intent to feloniously deprive the owner permanently of the property which is the subject of the larceny, but whether such intent existed is a question of fact to be determined by the jury from all the circumstances of the case. Groover v. State, 82 Fla. 427, 90 So. 473: Wharton's Crim. Law (11th Ed.) vol. 2, § 1094.
The evidence of the state is to the effect that the defendant got into the automobile, which it is alleged he attempted to steal, and was proceeding to disconnect the wires from the locked switch and connect them around it in such a way as to transfer the power from the batteries to the engine and thus run the car, although the switch was locked. There is some evidence from an expert witness on behalf of the state that this result could be accomplished in this way. There is other evidence that the defendant had made the inquiry of others a few days before the alleged crime how it could be...
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Connolly v. State
...an overt act, beyond mere preparation, done towards its commission, but falling short of consummation of the crime. Gustine v. State, 86 Fla. 24, 97 So. 207, 208 (1923) ; State v. Coker, 452 So.2d 1135 (Fla. 2d DCA 1984). There is little doubt that Connolly had the specific intent to commit......
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Giovanetti v. Holland
...the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084 .... Fla. Stat. § 777.04 (1973) ; see Gustine v. State, 86 Fla. 24, 97 So. 207, 208 (1923) (criminal attempt is "intent to commit a crime, coupled with an overt act apparently adapted to effect that intent, carri......
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Jones v. State
...to effectuate that intent, carried beyond mere preparation, but falling short of execution of the ultimate design." Gustine v. State, 86 Fla. 24, 26, 97 So. 207, 208 (1923). A As is true of any crime, the above-stated two elements of attempted grand theft may be established by the state at ......
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Brown v. State
...the underlying offense. The Thomas court relied on the definition of attempt that was articulated by this Court in Gustine v. State, 86 Fla. 24, 26, 97 So. 207, 208 (1923). The Gustine definition of attempt had been the standard prior to Gentry. Arguably, Thomas can be reconciled with Gentr......