Scott v. State, 2811
| Decision Date | 09 February 1962 |
| Docket Number | No. 2811,2811 |
| Citation | 137 So.2d 625 |
| Parties | Robert Earl SCOTT and Elmer K. Smith, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Joseph E. Johnston, Jr., Brooksville, for appellants.
Richard W. Ervin, Atty. Gen., and Robert R. Crittenden, Asst. Atty. Gen., for appellee.
Appellants, Robert Earl Scott and Elmer K. Smith, were charged by information with breaking and entering with intent to commit a misdemeanor, to-wit, petit larceny, under § 810.05, F.S.A. Consequent upon jury trial both defendants were convicted as charged. This appeal ensued.
The record reveals that on March 31, 1961 the defendants hitchhiked through Brooksville, Florida, enroute from Tampa to Kentucky. By afternoon they had proceeded some three miles north of Brooksville, walking in a drizzling rain, when they came upon a house by the road with a smaller house to the rear. They entered the smaller house by opening a back screen door. Inside the house they discovered, among other things, a bed and a bottle of whiskey. They drank some of the whiskey and went to bed.
Nellie Forabell was the absent occupant of the smaller house which the defendants entered. She returned to the premises about 5:00 o'clock the same day and prepared the evening meal for herself and her invalid husband in the larger house. About 10:00 o'clock P.M. she decided to retire to the smaller house where she was accustomed to sleeping. Upon opening the door she espied the defendants asleep in bed. The sheriff was notified and shortly thereafter two deputies arrived and aroused the defendants, who were still sleeping, and took them in custody.
The defendants, on appeal, urge reversal of their conviction on the ground that the evidence adduced at the trial was insufficient to sustain the verdict of the jury. It is clear from the record, one of the defendants having so admitted, that the defendants had opened the door of the house, entered therein and consumed a quantity of whiskey. The decisions indicate that it is properly within the office of the trying authority to determine that the force used by the defendants in opening the door was sufficient to constitute a 'breaking' within the purview of § 810.05, F.S.A. See Boynton v. State, Fla.1953, 64 So.2d 536, 548; Cooper v. State, 1922, 83 Fla. 34, 90 So. 693; 23 A.L.R. 109; May v. State, 1898, 40 Fla. 426, 24 So. 498.
It is contended that there was no evidence to support a finding of larcenous intent. However, as previously stated, the defendants admitted drinking the whiskey. This, we think, was sufficient to support a...
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Benefield v. State, 32506
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