Kilbee v. State
| Decision Date | 03 July 1951 |
| Citation | 53 So.2d 533 |
| Parties | KILBEE v. STATE. |
| Court | Florida Supreme Court |
Garland W. Spencer, Sanford, and Sam Bucklew, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and William W. Judge, Daytona Beach, for appellee.
The appellant, W. G. Kilbee, was indicted for the larceny of six hogs by a grand jury of Volusia County, Florida. He was later placed upon trial and a jury returned a verdict of guilty as charged. A motion for new trial was made by counsel and later denied by an order of the trial court, when appellant was adjudged guilty and sentenced to serve a period of two years in the State Prison at hard labor. The defendant below appealed. It was alleged that the six hogs were stolen by the defendant-appellant in Volusia County, Florida, on November 8, 1949. The hogs were described viz.: One black gilt hog marked under square in each ear; three hogs, each marked cropsplit in one ear, and under square in other ear; one black barrow hog marked with bolt mark in each ear; and one gilt hog marked crop-under bit in one ear and crop under slope in other ear.
The record discloses substantially the following factual situation: One W. M. Mixon, during 1946, bought certain hogs of described marks 'and all unmarked pigs and shoats belonging to the sows of the above marked hogs' owned by the Phillip A. Leonardy estate. The bill of sale as given by the administrator to Mixon failed to recite the exact hog range where the described hogs were located or the county or counties in which the hogs of the described marks usually ranged, but the parol testimony disclosed that the hogs in question were located about Osteen in southern Volusia County. The hogs, it was alleged, were stolen on November 8, 1949, and at the time ranged from Osteen, around Farmington, into Cow Creek, in the vicinity of Cook's Point, and upon lands of appellant referred to as Summerlin pasture, being adjacent to Cook's Point. Mr. Mixon, for a short time after acquiring the bill of sale, worked the hogs but sustained an injury and was forced to have others assist in marking the hogs, feeding them, and doctoring them for screw worms from time to time.
Some few months prior to March, 1947, Archie Ward worked on a share basis the hogs acquired by Mr. Mixon of the Phil Leonardy estate. These hogs ranged in the Summerlin pasture owned by the appellant. Some of the hogs were penned when the appellant, Mr. Mixon, Archie Ward and Aubrey Partin met at the pens and appellant paid Archie Ward $60 for his interest in the Mixon hogs. As a result of the trade, appellant testified that a one-half interest in the hogs then in the Summerlin pasture became his property and he acquired on the same date a remaining one-half interest of Mixon to the Leonardy stock of hogs (during 1947) ranging in the pasture. He (the appellant) then asserted ownership of a three-fourths interest in said stock of hogs. Ward and Mixon, however, contradicted the appellant's testimony as to the exact interest acquired by the appellant in the Mixon hogs ranging in the Summerlin pasture. Aubrey Partin testified that Mixon told him one-half of the hogs ranging in the Summerlin pasture belonged to Kilbee.
Appellant's testimony as to a three-fourths interest in the stock of hogs ranging in the Summerlin pasture is corroborated by a check dated March 11, 1948, payable to Bill Mixon in the sum of $45 and drawn by Kilbee; another check drawn by Kilbee, dated April 8, 1948, and payable to W. M. Mixon in the sum of $62.50; a third check payable to W. M. Mixon in the sum of $105 dated August 9, 1948. The amounts of these checks were paid to Mixon. The cost of wire in the sum of $90 was paid equally by Mixon and Kilbee to fence a twenty acre tract owned by Mr. Brewer and situated in the Summerlin pasture. The proceeds from hogs butchered or sold by Kilbee from the Summerlin pasture were paid one-half to Mixon and Kilbee retained one-half. Kilbee testified that Mixon was entitled to only one-fourth of the proceeds arising from the sale of the hogs or when butchered, but, because of Mixon's physical condition, he gave him one-half--but the correct interest was one-fourth.
The appellant acquired the Summerlin pasture lands situated in Volusia County during the year 1942. He placed a stock of hogs on the pasture shortly after acquiring it, where they continued until this law suit developed, except Kilbee was planting some of the pasture lands in Torpedo grass for cattle and woods hogs rooted up and destroyed the grass, which cost him approximately $80 per acre to set. He adopted the policy of removing all hogs from the Summerlin pasture and found it a difficult task to catch and remove them, but when caught they were transferred to a pasture near Geneva in Seminole County owned by him. The hogs in the Summerlin pasture would feed on acorns falling from the oaks and this feed alone was sufficient to make the hogs marketable. It appears by the record that the appellant had been in the cattle and hog business for approximately forty years--his father before him followed the same line and in the same area. He owned pastures situated in Volusia, Seminole and Brevard Counties. He owned approximately 25 to 35 different marks used to mark his stock of hogs and cattle about the several pastures situated in Volusia, Seminole and Brevard Counties. Kilbee owned stocks of hogs in the several marks as described in the indictment under which he was tried and convicted.
In the record are exhibits or certificates to the effect that the described marks of the six hogs referred to in the indictment are now used by owners of livestock in other counties of Florida, as appears among the public records thereof. Owners of livestock in some dozen counties, or more, have similar marks for their livestock. Kilbee testified, and it is not disputed, that he now owns stock in the several marks of the hogs described in the indictment. V. P. Allman, the prosecuting witness, testified that he owned hogs marked similar to those described in the indictment, with one or two possible exceptions.
W. M. Mixon, on July 21, 1948, sold the prosecuting witness. V. P. Allman, all range hogs of certain marks '* * * and the unmarked pigs and shoats belonging to the marked hogs.' Some of these hogs ranged in the Summerlin pasture owned by the appellant. Allman had been in the hog business all his life but owned no land upon which they could range and the marked hogs purchased by him from Mixon ranged in part, in the Summerlin pasture owned by the appellant. Kilbee was improving the pasture for his cattle by planting Torpedo grass which the hogs destroyed. Allman needed a range for his hogs and Kilbee wanted the hogs removed from his pasture. Friction therefore arose...
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...follows the defendant throughout his trial, Broadnax v. State, Fla., 57 So.2d 651; Pinder v. State, Fla., 53 So.2d 639; Kilbee v. State, Fla., 53 So.2d 533; Roe v. State, 96 Fla. 723, 119 So. 118; third, when circumstantial evidence alone is relied upon for conviction the inference of guilt......
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