Long v. State

• Decision Date: 01 April 1902
• Citation: 44 Fla. 134,32 So. 870
• Parties: LONG v. STATE.
• Court: Florida Supreme Court

32 So. 870

44 Fla. 134

LONG v. STATE.

Florida Supreme Court

April 1, 1902

Error to criminal court of record, Orange county; Cecil G. Butt Judge.

James Long was convicted of larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Declarations of a prosecuting witness as to his ownership of certain cattle, made at a time when he was not in possession thereof, and not made in defendant's presence, are not admissible against defendant on a trial for the larceny of such cattle.

2. In order to render a bill of sale absolute on its face a mortgage, it must have been executed with the intention or purpose of operating as a security.

3. A charge asserting that, if it was verbally agreed between the parties to the transaction, at the time of execution of an absolute bill of sale of certain cattle, that the vendor should be allowed to redeem or have the cattle back upon payment of a certain sum of money, the transaction constituted a chattel mortgage only, is properly refused, as the facts thus hypothesized are not inconsistent with an absolute sale, in the absence of an intention that the conveyance should be a security.

4. A charge asserting that a chattel mortgage does not operate as a conveyance of the legal title or right of possession is properly refused, where there is evidence tending to show that the mortgagee, by the terms of the instrument, and by a verbal understanding between the parties, was to have possession of the property.

5. The rule announced in Dean v. State, 26 So. 638, 41 Fla 291, 17 Am. St. Rep. 186, that, '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 convicing evidence before a conviction is authorized,' is not a rule of law to be given in charge to a jury in prosecutions for larceny, but a presumption of fact, which the jury may apply in proper cases, and which may guide the court, in cases where it is applicable, in determining the sufficiency of evidence to support a verdict of guilty.

6. To constitute larceny, there must exist both a felonious intent and a carrying away of the property, and a charge eliminating either of these features of the offense is improper.

7. Where one person, having no actual or constructive possession of the property of another, points out such property to a third person, and gives the latter a bill of sale therefor, receiving in payment a sum of money, he does not commit larceny, in the absence of some act constituting an asportation of the property.

COUNSEL

Jones & Jones and L. D. Browne, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

PER CURIAM.

This cause was referred by the court to two of its commissioners Messrs. Hocker and Glen, for investigation, who have reported that the judgment ought to be reversed.

Plaintiff in error was tried and convicted in July, 1901, in the criminal court of record of Orange county, upon an information charging the larceny of two cows, the property of William Lancaster. It appears from the evidence that defendant, claiming to own the two cows alleged to have been stolen, which were then in a pasture, went out there with one Douglass, as Douglass claimed, to sell him the cattle, but, as defendant claimed, to procure a loan of $25 upon the security of a bill of sale for the cattle. Defendant pointed them out to Douglass, and on the same day executed a bill of sale to Douglass, agreeing to allow the cattle to remain in the pasture for 15 days free of charge; and Douglass paid him $25, as he claims, for the purchase of the cattle, but, as defendant claimed, on the security of the bill of sale. Some weeks afterwards Douglass drove the cattle away, and a few days afterwards Lancaster went to see Douglass about the cattle. The witness Douglass was permitted, over defendant's objections and exceptions, to testify that in the conversation then had between witness and Lancaster the latter claimed to own the cattle. The cattle were at the time in the possession of Douglass, and defendant was not present at the time of the conversation. This testimony, to the effect that Lancaster claimed to own the cattle, was hearsay, and ought to have been excluded on defendant's objection. The question as to Lancaster's ownership was a contested one on the trial, defendant claiming to own them himself, and it was not proper to allow Lancaster's declarations as to his ownership, not made in defendant's presence, and while he was not in possession of the cattle, to be given in evidence. The defendant, as a witness, was asked, concerning the bill of sale above referred to, 'Did you understand that bill of sale to be a straight out bill of sale of the cattle or a mortgage?' Upon objection by the state the witness was not permitted to answer. Without undertaking to say whether this particular question was objectionable, its exclusion was immaterial, because in answer to other questions the witness was permitted to state the circumstances attending the execution of the paper, the purpose for which it was executed, and his understanding that the paper was executed as security for a loan of money, and not to evidence an absolute sale.

Defendant moved the court to strike from the evidence the bill of sale executed by him to Douglass. When this motion was made, the bill of sale had not been offered in evidence. At a subsequent stage of the trial the paper was introduced in evidence without objection, and the motion to strike was never renewed.

Exceptions were taken to the refusal to give instructions requested by defendant, as follows: '(1) If you find from the evidence that, although the bill of sale given by defendant to Elisha Douglass of the cattle which defendant is charged with stealing was so given by him, and that, although the said bill of sale purports on its face to be absolute, it was verbally agreed between defendant and Douglass that defendant was to be allowed to redeem or have the cattle back upon payment by him to Douglass of a certain sum of money, you are instructed that the said bill of sale is deemed to be a chattel mortgage only. (2) If you find from the evidence that the said bill of sale was a mortgage, you are instructed that it only conferred a specific lien on the cattle in favor of Douglass, and did not operate as a conveyance of the legal title or right of possession of the cattle.' These instructions were properly refused. The facts stated in the first charge do not necessarily, as a matter of law, make the transaction a mortgage. The facts stated may be entirely consistent with an absolute sale of the property. In order to make the transaction a mortgage, the intention or purpose must be to secure the payment of money. Section 1981, Rev. St. The fact that an absolute purchaser may agree with the seller to resell the property to him for a sum of money agreed upon, or, as expressed in the refused instruction, it may be verbally agreed between the seller and purchaser that the former was to be allowed to have the property back upon payment of a certain sum of money, does not necessarily prove the transaction in reality to be merely the security for money, so as to bring the transaction within the meaning of the statute. If the bill of sale was, under the statute, according to the evidence, in reality a mortgage, yet by some evidence, at least, Douglass, to whom the paper was...