Sykes v. State

• Decision Date: 29 July 1919
• Citation: 82 So. 778,78 Fla. 167
• Parties: SYKES v. STATE.
• Court: Florida Supreme Court

82 So. 778

78 Fla. 167

SYKES v. STATE.

Florida Supreme Court

July 29, 1919

Error to Criminal Court of Record, Orange County; T. Picton Warlow Judge.

John Sykes was indicted with another and was convicted jointly of larceny, and he brings error. Reversed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Where a court or judge under the criminal laws of the state sentences or adjudges a person to pay a fine or fine and costs of prosecution, the alternative sentence for nonpayment of the fine should be imprisonment in the county jail, and not the state prison, for a period of time.

A bailee of property of which he has the lawful possession cannot commit larceny of it; but if possession is obtained by trick, device, or fraud with intent to appropriate the property to his own use, the owner or custodian intending to part with possession only, the bailee commits larceny when he subsequently appropriates the property.

A witness testified that he had the custody of an automobile that he kept it in his shop, where it was undergoing some repairs, that it was removed from the shop, and he did not of his own knowledge know who removed it nor how it was removed. Held, insufficient to show lack of consent to its removal on his part, and insufficient to show larceny of the vehicle on the part of the defendant.

Before the admission of an incriminating fact by a person under arrest charged with a crime is receivable in evidence against him, it must affirmatively appear that the admission was voluntarily made.

Error in the admission of evidence which is harmless is not ground for reversal.

Section 3979, General Statutes of Florida 1906, prohibits the prosecuting attorney in a criminal case from commenting upon the failure of the defendant to testify in his own behalf. If the accused does testify in his own behalf upon one phase of the case, but not upon every phase of it, the prosecuting attorney is not permitted to comment upon the defendant's failure to testify upon every phase of the case.

COUNSEL Dickinson & Dickinson, of Orlando, for plaintiff in error.

Van C Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

The plaintiff in error and Jacque Cartridge were informed against in the criminal court of record for Orange county for the larceny of an automobile alleged to be the property of C. D. Christ. There were five counts to the information. The first charged the defendants jointly with the larceny of the car; the second charged Jacque Cartridge as principal and John Sykes as accessory before and after the fact; the third charged Sykes as principal and Cartridge as accessory before and after the fact; the fourth charged John Doe an unknown person as principal, and Cartridge and Sykes as accessories before and after the fact; and the fifth charged John Doe, an unknown person, as principal, and Cartridge and Sykes as accessories after the fact. It was alleged that the car was stolen in Orange county on the 27th day of December, 1918. The plaintiff in error was placed on trial in March, 1919, and was found guilty as charged in the first count of the information. The judgment of the court was as follows:

'John Sykes, you will please stand up. Have you anything to say why the judgment of the court should not be passed upon you, and, the said defendant having nothing to say, it is the sentence of the law and judgment of the court that you, John Sykes, for the offense of which you have been found guilty, pay a fine of $2,000 and costs, and in default thereof that you be confined in the state penitentiary of the state of Florida for the term of 18 months, the defendant John Sykes being then and there present.'

The sentence was erroneous, in that the primary punishment imposed being a fine and costs only, the court should have fixed a period of imprisonment in the county jail instead of the penitentiary on nonpayment of the fine. See section 4011, Gen. Stats. 1906; Thompson v. State, 52 Fla. 113, 41 So. 899; Dean v. State, 41 Fla. 291, 26 So. 638, 79 Am. St. Rep. 186; Douglass v. State, 53 Fla. 27, 43 So. 424; Bueno v. State, 40 Fla. 160, 23 So. 862; Eggart v. State, 40 Fla. 527, 25 So. 144; Enson v. State, 58 Fla. 37, 50 So. 948, 138 Am. St. Rep. 92, 18 Ann. Cas. 940; Taylor v. State, 67 Fla. 127, 64 So. 454.

The plaintiff in error seeks a reversal of the judgment upon the grounds that the verdict is not supported by the evidence; that the trial court erred in refusing certain instructions requested in behalf of the defendant below; in admitting certain evidence and overruling the motion for a new trial. The motion for a new trial contains 48 grounds; all of them, however, are not discussed. Those grounds which are discussed in the brief present questions of the admissibility of certain statements, admissions or confessions of the defendant Sykes and of the defendant Cartridge, made in the presence of Sykes after the two had been arrested, concerning their possession of the car shortly after it had been stolen, the contents of a certain bill of sale for the automobile which the defendant Cartridge held, and the propriety of the argument of the county solicitor in commenting upon the failure of the defendant Sykes to testify concerning certain matters of fact to which other witnesses had testified, and which the solicitor seemed to regard as incriminating, if not explained.

It appears from the evidence that the automobile which was alleged to have been stolen was the property of Dr. C. D. Christ; that when the car was taken it was in a shop occupied by N. Hudson, a painter and decorator, to whom Dr. Christ had taken the car to be painted, and who had 'charge of the car' at the time. Mr. Hudson saw the car in his place of business about 6 o'clock on the night of December 26, 1918. On the morning of December 27th the car was gone. Dr. Christ said nothing about authorizing any one to remove the car from the shop, nor that he had not given possession to any one to do so, but did say the car was in charge of Mr. Hudson at the time. Dr. Christ was asked if he lost a car on or about the 26th or 27th of December, and replied in the affirmative. The testimony of Mr. Hudson on this subject was that he saw the car 'about 6 o'clock on the night of the 26th, on Thursday night'; that he did not move the car from his place of business after 6 o'clock that night; that his 'place' was not locked at the time he left it on the night of the 26th, and that he did not of his own knowledge know 'how' the car was taken from his place or who took it from there.

This was all the evidence offered by the state as to the unlawful taking of the car. If Mr. Hudson had charge of the car, a removal of it from his shop with his consent would not have been unlawful so far as the taker was concerned if the latter had no purpose of committing theft. If therefore the car was taken with Mr. Hudson's consent from his shop that night, and the taker had no design to commit theft of the car at the time of the taking, it would be necessary for the state to show when the design to steal the car developed in the taker in order to establish his criminality as thief or embezzler. See Wilson v. State, 47 Fla. 118, 36 So. 580.

A bailee who has lawful possession cannot commit larceny. But one who obtains possession of personal property by trick, device, or fraud with intent to appropriate the property to his own use, the owner or custodian intending to part with possession only commits larceny when he subsequently appropriates it. See Finlayson v. State, 46 Fla. 81, 35 So. 203.

In the Wilson Case, supra, the court held...