Johnson v. State
| Decision Date | 23 April 1946 |
| Citation | 25 So.2d 801,157 Fla. 328 |
| Parties | JOHNSON v. STATE. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Levy County; A. Z. Adkins Judge.
W. F Anderson, of Bronson, and W. P. Chavous, of Cross City, for appellant.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
We shall give at the outset a condensation of the witnesses' accounts of the misdeeds of Sparks Johnson which the jury weighed and found sufficient to establish beyond a reasonable doubt the breaking and entering by him of the property of R. E. Davis Jr., and Dave Lang Scott with intent to commit grand larceny.
The place entered was a store where liquor was sold in packages.
Long after one midnight the appellant and two companions wakened the storekeeper and bought from him a bottle of whisky. This incident began with their kicking the door and ended with their kicking the storekeeper. Because of their rowdiness and their belligerent attitude the storekeeper, anticipating further trouble and having no means of protecting himself, locked the place and took a station in his car some distance away instead of returning to his living quarters in the rear of the shop. An hour later, from this vantage point, he saw the appellant and his confederates return, heard them shoot the lock from the door, and watched them proceed to remove several cases of whisky.
It was shown by other witnesses that they at first hid the loot in the bushes, then cashed it in the cabin of an old negress who was ignorant of their marauding. When news of the pilferage was abroad, and evidently after a search warrant had been issued to locate the stolen property, a man who had taken no part in the crime, but who had assisted in disposing of the booty afterward, drove to the house of the old negress, warned her that the liquor she possessed had been stolen, and told her to do away with it. Later this same person, accompanied by appellant, called on her and demanded that she produce the whisky or pay them $400. When she told them it had been destroyed they took what little money she had, choked her and threatened that unless she raised the balance she would forfeit her life.
In passing, we may say that of the three who were implicated in this criminal transaction one (appellant) was convicted, one was acquitted, and the other testified in behalf of the state.
The circumstances we have recounted, which the jury chose to believe despite the categorical denial by the defendant, amply established commission of the crime charged. The appellant contends, however, that there was failure on the part of the state to prove beyond a reasonable doubt two components of the charge--namely, the intent to steal property of the value of more than $50, and the nonconsent of the owners. The first of these may be easily determined by simply referring to the testimony of one of the owners who, when asked whether the property taken was worth more or less than $50, replied, 'More than * * * $50.00.' This statement was unimpeached and uncontradicted; so the intent to steal property of the value of $50 was well established by the uncontroverted proof that after appellant and his accomplices had forcibly gained admission to the building they actually asported property of that value.
The appellant urges us to hold the judgment against him invalid because no direct testimony was given by the owners, only one of whom took the witness stand, that neither of them consented to the property being carried away by the appellant. In supporty of this position he has cited our decision in Albritton v. State, 81 Fla. 684, 88 So. 623, where we recognized the rule that the nonconsent of the owner must be proved to justify a conviction of larceny and cannot be presumed from the taking. Unquestionably the court has recognized this prerequisite to a conviction of larceny. The question is the extent to which the state must go in proving this element of larceny when the defendant is on trial for breaking and entering with intent to commit that offense.
Lack of consent is an essential ingredient of larceny which may be defined as the taking and carrying away of the property of another without his consent and with intent to deprive him of it permanently. A more elaborate definition will be found in Driggers v. State, 96 Fla. 232, 118 So. 20, quoted in Brent v. State, 127 Fla. 626, 173 So. 675. In a prosecution for breaking and entering it is incumbent on the state to prove beyond a reasonable doubt that the defendant actually broke and entered and that when he did so he had the intent to commit some crime--in this case, grand larceny.
Beyond reasonable doubt the state proved that the defendant broke and entered the building, and we think the circumstances establish that at the time he intended to perpetrate grand larceny.
Turning to the same authority cited in Albritton v. State, supra, Underhill on Criminal Evidence, we find the statement that in prosecutions for breaking and entering 'nonconsent need not be proved by direct evidence, but may be inferred from the circumstances.' Even assuming that proof of lack of consent...
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