Stewart v. State, 1814

• Decision Date: 15 July 1960
• Docket Number: No. 1814,1814
• Citation: 122 So.2d 34
• Parties: Charles STEWART, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 34

122 So.2d 34

Charles STEWART, Appellant, v. STATE of Florida, Appellee.

No. 1814.

District Court of Appeal of Florida, Second District.

July 15, 1960.

Charles F. Benson, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., Edward S. Jaffry, Asst. Atty. Gen., for appellee.

ALLEN, Chief Judge.

The defendant was tried and convicted of unlawfully breaking and entering a certain building with intent to commit a misdemeanor.

The first count of the information charged that the defendant, Charles Stewart, and one William Curtis Wallace, on the 14th of February, 1960, did unlawfully break and enter a certain building, to wit: Bill's Tavern, located at 8113 Nebraska Avenue in the City of Tampa, the property of Wendell G. Tam, with intent to commit a misdemeanor therein, to wit: to unlawfully take, steal and carry away the money, goods and property of the value of less than $100, the property of Wendell G. Tam.

Wendell Tam, as a witness for the State, testified as follows:

'Q. What is your name, please? A. Wendell Tam.

'Q. Mr. Tam, what is your occupation or profession? What do you do? A. Bartender.

'Q. Where? A. Bill's Tavern, Sulphur Springs.

'Q. And you are the manager out there? A. Yes, sir.

'Q. At night? A. Yes.

'Q. What is that address there? A. 8113 Nebraska Avenue.'

On cross-examination Tam stated that he was not the licensee and not the tenant; that the rent was paid by one William Pennington whom he thought had a lease from Mr. Chanbon. Then the question was asked:

'Q. But you have absolutely no status as a tenant or as an owner of the bar, you are strictly an employee? A. Yes, sir.'

The defendant moved for a directed verdict on the first count among other grounds that the evidence failed to show that the premises broken into were owned by Wendell G. Tam, as set out in the first count of the information, and showed ownership in another person which constituted a fatal variance. The court denied the motion and, after finding the defendant guilty and denying the motion for a new trial, the defendant was sentenced to three years in the state prison.

In Smith v. State, 96 Fla. 30, 117 So. 377, the Court held that the allegation of ownership in a prosecution for breaking and entering is material and must be proved as laid. The defendant, Roy Smith, was charged with breaking and entering the property of Frank Heide with intent to commit a felony. The proof showed the property to be owned by H. Rich Mooney. Heide was an employee of Mooney. His duties were to take care of the grounds and open the house occasionally for ventilation. He had a key to the house, but did not live in it or on the premises.

The Court, in its opinion, said:

'The judgment should be reversed because of the variance between the allegation and proof as to ownership. Under the statutes denouncing burglarious entering the allegation of ownership of the building alleged to have been entered is material and must be proved as laid. See Pells v. State, 20 Fla. 774; Burnes v. State, 89 Fla. 494, 104 So. 783; Smith v. State, 80 Fla. 315, 85 So. 911; Vicente v. State, 66 Fla. 197, 63 So. 423; Davis v. State, 51 Fla. 37, 40 So. 179; Potter v. State, 91 Fla. 938, 109 So. 91.'

In Kirtsinger v. State, 99 Fla. 433, 126 So. 767, it is stated that where a house is unoccupied, ownership should be alleged in the holder of the title as having the constructive possession but where it is occupied, ownership should be laid in the actual occupant, unless he is a mere servant.

In Potter v. State, 91 Fla. 938, 109 So. 91, it was held that an averment that the building was 'occupied' by a named person is not sufficient allegation of ownership as is required in an indictment for breaking and entering.

In Cannon v. State, 102 Fla. 928, 136 So. 695, 697, it was said that where the property alleged to have been broken into was occupied by a lawful tenant at the time of breaking and entering the ownership of such property should be laid in the tenant because it would be the tenant's and not the true owner's property rights that would be invaded by the breaking and entering for the purpose of committing a misdemeanor or felony under the Florida statutes. The Court, in its opinion, said:

'In Presley v. State, 61 Fla. 46, 54 So. 367, it was held that the purpose of our statute against breaking and entering is to punish for an offense involving the possessory rights of another. One of the...