Kemp v. State
| Citation | 146 Fla. 101,200 So. 368 |
| Parties | KEMP v. STATE. |
| Decision Date | 11 February 1941 |
| Court | Florida Supreme Court |
F. T Kemp was convicted of larceny, and he appeals.
Reversed and remanded. Appeal from Circuit Court Columbia County; Hal W. Adams, judge.
W Robert Smith, of Ocala, for appellant.
George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for appellee.
The appellant, F. T. Kemp, was indicted on April 25, 1939, for the larceny of a bull. He was tried April 29, 1940, and a verdict of guilty was returned. From a judgment of conviction and sentence to imprisonment in the State penitentiary, this appeal is brought.
The defendant below questions the sufficiency of the evidence adduced by the State to show a felonious intent on his part to steal the bull and permanently deprive the owner thereof. 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, 26 A.L.R. 373; Gustine v. State, 86 Fla. 24, 97 So. 207. The burden rests on the State of show that the property was taken animo furandi as an essential to conviction. Charles v. State, 36 Fla. 691, 18 So. 369; Flint v. State, 143 Fla. 259, 196 So. 619.
The defendant admitted having the bull in his enclosure but explained that fact by stating that he had driven the bull to his place and put him in the pen for the purpose of servicing a milk cow that had come in heat. The defendant, with the assistance of two negroes, went to get the bull in the day time, openly and without any attempt at secrecy, and placed the bull in an open pen, 150 feet from and in full view of a main highway, with no subsequent attempt at concealment. When the sheriff arrived he admitted possession of the bull and also that the bull was owned by J. S. Niblack.
It is a settled rule of law that the unexplained possession of recently stolen property may be sufficient to sustain a verdict of guilty upon a charge of larceny. McDonald v State, 56 Fla. 74, 47 So. 485; Tucker v. State, 86 Fla. 36, 96 So. 10; Bargesser v. State, 95 Fla. 401, 116 So. 11. The reasonableness of the accused's explanation of his possession of recently stolen goods, when he is charged with the theft of such property, is a question of fact, to be considered by the jury in connection with all other facts and circumstances submitted to them in the trial of the case. Tucker v. State, supra; Bargesser v. State, supra; Kilkrease v. State, 96 Fla. 264, 117 So. 862. But where the taking is open and there is no subsequent attempt to conceal the property, and no denial, but an avowal, of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. Dean v. State, 41...
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Morissette v. United States 8212 10, 1951
...no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. * * *' Kemp v. State, 146 Fla. 101, 104, 200 So. 368, 369. We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow woul......
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Cordell v. State
... ... another, without his consent, by a person not entitled to the ... possession thereof, with the intent to deprive the owner of ... the property and to convert it to the use of the taker or to ... some person other than the owner. Brent v. State, ... 127 Fla. 626, 173 So. 675; Kemp v. State, 146 ... [25 So.2d 886] ... Fla. 101, 200 So. 368. It is essential, in ... order to sustain a conviction of larceny, that the evidence ... adduced by the State establishes beyond a reasonable doubt ... that the property was taken animo furandi. Helton v ... State, 135 458, 185 So ... ...
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Taylor v. State, 70--403
...v. State, 55 Fla. 90, 45 So. 818; Winton v. State, 87 Fla. 104, 99 So. 249; Stephenson v. State, 89 Fla. 351, 104 So. 600; Kemp v. State, 146 Fla. 101, 200 So. 368; 28 Fla.Jur., Receiving Stolen Goods § 8. Suspicious circumstances alone are not enough to support a verdict of guilt. Minor v.......
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Smith v. State
...finding that appellant intended to deprive the owner of the cigarettes. See Bond v. State, 230 Ark. 962, 328 S.W.2d 369; Kemp v. State, 146 Fla. 101, 200 So. 368 (1941). Evidence of concealment of the property may constitute evidence of a felonious intent, depending upon the surrounding cir......