Lowe v. State

• Decision Date: 24 September 1902
• Citation: 32 So. 956,44 Fla. 449
• Parties: LOWE v. STATE.
• Court: Florida Supreme Court

32 So. 956

44 Fla. 449

LOWE v. STATE.

Florida Supreme Court

September 24, 1902

Error to circuit court, De Soto county; Joseph B. Wall, Judge.

Allen Lowe was convicted of larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where defendant in a criminal case interposes a demurrer to the state's evidence, which is in parol and almost wholly circumstantial, and no part of the testimony is reduced to writing, no specific facts are admitted upon the record, and the state attorney does not join in such demurrer, the court should decline to consider it; but if the court does consider and overrule it, and defendant is afterwards permitted to interpose evidence in his defense, the error in overruling instead of declining to consider, the demurrer, is without injury, and will constitute no ground for reversing the judgment of conviction entered upon the verdict of the jury.

2. A taking by the voluntary consent of the owner, or his authorized servant or agent, even though with a felonious intent, does not constitute larceny.

3. Where the criminal design to steal originates with the accused, and the owner of the property stolen does not, in person or by an agent or servant, suggest the design, nor actively urge the accused on to the commission of the crime the mere fact that such owner, suspecting that the accused intends to steal his property, in person or through an agent or servant, exposes the property, or neglects to protect it or furnishes facilities for the execution of the criminal design, under the expectation that the accused will take the property or avail himself of the facilities furnished, will not, in law, amount to a consent to the taking, even though the agent or servant of such owner by his instructions appears to co-operate in the execution of the crime.

4. Evidence examined, and found insufficient to support the verdict.

COUNSEL Stevens & Phillips, for plaintiff in error.

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

OPINION

CARTER J.

Plaintiff in error was at the fall term, 1899, of the circuit court of De Soto county, indicted for the larceny of a cow, the property of one Durrance. At the fall term, 1901, a trial was had, resulting in a verdict against the defendant. From the sentence imposed he has taken writ of error to the present term of this court, and assigns as error the rulings of the court upon his demurrer to evidence and motion for a new trial, each of which were overruled, and exceptions noted.

1. The demurrer was interposed at the close of the state's testimony, which was in parol, and almost wholly circumstantial. It nowhere appears that the state attorney joined in or argued the demurrer. No part of the testimony was reduced to writing until long after the trial of the case, and then only by being incorporated in the bill of exceptions. The demurrer was general, nothing was reduced to writing, no specific facts were admitted upon the record, and there was no joinder in demurrer. Under these circumstances the court should have declined to consider the demurrer; but as the defendant was afterwards permitted to introduce evidence in his defense, no injury resulted to him from the action of the...