Pottinger v. State
| Citation | 165 So. 276,122 Fla. 405 |
| Parties | POTTINGER v. STATE. |
| Decision Date | 22 January 1936 |
| Court | United States State Supreme Court of Florida |
Error to Criminal Court of Record, Dade County; E. C. Collins Judge.
Victor Pottinger was convicted for the larceny of an automobile, and he brings error.
Reversed.
George M. Okell, of Miami, for plaintiff in error.
Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
Plaintiff in error was informed against. tried, and convicted in the criminal court of Dade county for the larceny of an automobile contrary to section 5142, Revised General Statutes of 1920, section 7243, Compiled General Laws of 1927. He was sentenced to five years in the state penitentiary and now seeks relief from that judgment by writ of error.
It is contended that the verdict was contrary to the law and the evidence, that the charge of the court did not correctly state the law of the case, and that error was committed in the refusal of charges requested by the plaintiff in error.
The record reveals that plaintiff in error was a young man twenty-one years of age, he was employed in the county, and received his pay envelope at noon on the day the offense for which he stands convicted is alleged to have been committed. In the afternoon, in the exercise of his personal liberty and a democratic propensity, he undertook to visit and patronize all the barrooms and night clubs in the Miami area. Like the prodigal son, he had friends a plenty until the collapse of his pay envelope, when all forsook him but one named Robinson. Having become footsore and weary and his belly filled with 'liquor, beer, and other stuff' instead of corn husks, he and Robinson, who had heretofore traveled on foot, entered the automobile of the prosecuting witness which they found parked on the street unlocked, and continued their visitations as before.
The missing automobile was promptly reported to the police department and was located before midnight at one of the night clubs near by. Robinson was in the car and was arrested when it was apprehended, but plaintiff in error was patronizing the club. On his return to the car a little later, the glimpse of a cop standing by reacted like a transfusion of rabbit blood, agitating him to flee under fire, but he was arrested during the night in a downtown hotel. The car was returned to the owner the following day unharmed.
The information did not follow the statute (section 7243, Compiled General Laws of 1927) under which it was brought, and the evidence to prove the offense charged falls short of that degree of certitude required under our decisions. We find nothing in the evidence as summarized to show a felonious intent to steal and permanently deprive the owner of the automobile which is a necessary ingredient to the crime charged. Granquist v. State, 86 Fla. 32, 97 So. 205; Morton v. State, 72 Fla. 265, 73 So. 187; Hogan v. State, 50 Fla. 86, 39 So. 464, 7 Ann.Cas. 139; Smith v. State, 87 Fla. 502, 100 So. 738.
The trial court committed reversible error in charging the jury that 'under the law there could be no further prosecution about this transaction.' At best the evidence would support nothing more than a charge under section 5229, Revised General Statutes of 1920, section 7348, Compiled General Laws of 1927. The instant prosecution would not bar one under the latter act.
The offense for which plaintiff in error stands convicted is entirely separate and distinct from that defined and punished by the last-cited statute. The prohibition of the common law and our Constitutions against second jeopardy for the same offense has reference to the identical act or crime. Not the same offense eo nomine, but the same crime, transaction, or omission; the test being whether the defendant has been twice in jeopardy and not whether he has been tried before for the same act. 16 C.J. 263; Wallace v. State, 41 Fla. 547, 26 So. 713.
Under the facts as presented, plaintiff in error was entitled to the charges requested and refused, but it becomes unnecessary to discuss them.
The judgment below is reversed.
Reversed.
I do not agree with the conclusion reached in this case. The plaintiff in error, as stated in the majority opinion, was convicted of the offense of larceny of an automobile. The information was in proper form. No objection was made to its sufficiency.
I agree to the summing up of the evidence in the opinion, although I do not agree that voluntary intoxication and the taking of an automobile, the property of another, without the latter's consent, by one so intoxicated, and appropriating it to his own use, which the necessities, exigencies, or convenience of the occasion suggested, is the exercise of personal liberty and democratic propensities.
The information charged that Pottinger on a certain date in the county of Dade 'did then and there unlawfully and feloniously take, steal and carry away one certain motor vehicle.' The vehicle is then sufficiently described.
The statute, section 7243, C.G.L.1927, denounces the offense of the larceny of an automobile as a felony, and provides the punishment of committing such an offense.
The accused went to an automobile which was parked on the street. He found that one door of the vehicle was locked. His friend, with whom he was associated, went to the other side of the vehicle, found the door unlocked, and entered the car. The accused entered, and they both went away in it and did not return it. The automobile, several hours afterwards, was found some distance away from the place from which it had been taken and still in the possession of the accused and his associate, who was a different person from the one who was associated with him when the automobile was taken and driven away.
So the accused exercised control over the vehicle, used it for his own purpose, intended, according to his own statement, to take his friend and some young women riding in it. He was frustrated in that purpose by the tardiness of his friend in making a suitable toilet and the untimely appearance of the policemen who were in search of the car. When the accused came out of the night club, to which he had repaired for another, drink, and saw the policemen at the car, he ran away, and did not stop when the policeman fired his pistol at him.
This jurisdiction holds to the doctrine that an intent to convert the article taken to the use of the person taking it, or someother person other than the owner, is an element of the offense of larceny. Driggers v. State, 96 Fla. 232, 118 So. 20.
The accused removed the automobile from the place where the owner wanted it to be and where he had placed it. That was a complete termination of the owner's possession.
The accused proceeded to use the property as his own, subjected it to his own use, utilized it and the fuel with which it was supplied for the purpose of transporting himself and his companions about the city. This use was continued for several hours, and was interrupted only by the appearance of the policemen who were in search of it. The statement that the accused did not intend to steal the automobile lay only in...
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State v. Schminkey
...Other states have, under similar facts, reached the same result as did our courts in Brainard and Henning. E.g., Pottinger v. State, 122 Fla. 405, 165 So. 276, 277 (1936) (holding the evidence was insufficient to support a finding that the defendant intended to permanently deprive another o......
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State v. Conrad
...before upon the same acts, circumstances or situation the facts of which may sustain a conviction for a separate crime. Pottinger v. State, 122 Fla. 405, 165 So. 276; Sanford v. State, 75 Fla. 393, 78 So. 340; Driggers v. State, 137 Fla. 182, 188 So. 118. If the indictment on the first tria......
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State v. Jackson, 1593
...as consistent with the theory that she took it for a temporary use, the court should have found the defendant not guilty. Pottinger v. State, 122 Fla. 405, 165 So. 276; People v. DeStefano, 23 Ill.2d 427, 178 N.E.2d 393; Ephram v. State, 204 Miss. 879, 35 So.2d 708; West v. State, 119 Neb. ......
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State v. Bowden
...before upon the same acts, circumstances or situation the facts of which may sustain a conviction for a separate crime. Pottinger v. State, 122 Fla. 405, 165 So. 276; Sanford v. State, 75 Fla. 393, 78 So. Driggers v. State, 137 Fla. 182, 188 So. 118. If the indictment on the first trial was......