Tidwell v. State
| Decision Date | 18 June 1940 |
| Citation | 143 Fla. 397,196 So. 837 |
| Court | Florida Supreme Court |
| Parties | TIDWELL et al. v. STATE. |
Error to Court of Record, Escambia County; R. Pope Reese, Judge.
Ollie Tidwell and Jesse Welch were convicted for buying, receiving and aiding in concealment of stolen property, and they bring error.
Affirmed.
COUNSEL Philip D. Beall, Jr., of Pensacola, for plaintiffs in error.
George Couper Gibbs, Atty. Gen., and William Fisher, Jr., Asst Atty. Gen., for defendant in error.
Writ of error to a final judgment of the Court of Record of Escambia County. Tidwell and Welch, defendants below were informed against in the Court of Record in two counts being charged in the first count with the larceny of one boat motor the property of another of the value of $250, and in the second count with having feloniously bought, received and aided in the concealment of the same boat motor. The offenses charged under both counts are alleged to have been committed on the same day.
At the close of the case, after all evidence for both the state and defendants was concluded, defendants moved to require the state to elect upon which of the two counts it would stand for conviction. The denial of this motion is made the basis of the first question propounded for decision.
It is the settled rule of this state that where defendants are informed against in two inconsistent and repugnant counts and cannot be convicted under both of them, it is error to deny a motion timely and properly made to require the state to elect upon which of the two counts it will stand for conviction. Mayers v. State, 126 Fla. 640, 171 So. 824; Carlton v. State, 108 Fla. 34, 145 So. 249. See also Pearce v. State, Fla., 196 So. 685, argued this term.
When is a motion requiring election properly and timely made? In the Pearce, Mayers and Carlton cases, supra, the motion was made after the state had closed its case in chief, and before the introduction of any evidence by defendants. This has been the criterion heretofore. To extend the time when such a motion may be made and to allow defendants to introduce testimony before requiring election would work an undue detriment to the state in the prosecution of criminal cases not sanctioned by this court.
Defendants were found guilty under the second count and judgment was rendered on the verdict. In seeking reversal, defendants contend that there was not sufficient evidence of receiving stolen goods upon which the jury could base its verdict, and that inferences drawn by the jury from the fact of the goods being in defendants' possession are insufficient as a basis for the verdict of guilty.
Defendants admitted that they had the property in their possession, but offered an explanation of such possession. The jury are the sole judges of the reasonableness, probability, and credibility of the defendants' explanation of how they came into possession of the stolen property. See Carlton v. State, supra; McDonald v. State, 56 Fla. 74, 47 So. 485. The verdict of guilty indicates that the jury did not believe the explanation. Inference of guilt that may have been drawn by the jury from the defendants' possession of the property are not without substantial support in the evidence.
BUFORD and THOMAS, JJ., not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
It appears that in all the cases decided by this court on the point, the motion to require the State to elect upon which of two inconsistent counts it would rely for conviction was made at the close of the State's case in chief and not at the close of all the testimony. It would seem that such would be the time for making such a motion. The only possible reason for requiring the State to elect upon which count it would rely for conviction is in order that the defendant might know which of two inconsistent charges he is called upon to meet with his evidence, and thereby to afford him the opportunity of defending with his evidence against the specific charge upon which the State relies. When a defendant is charged with two inconsistent offenses, and might under the evidence be guilty of one or the other of them but not of both, the defendant might well be embarrassed or hampered in the defense of the case by not knowing which of the two charges the State relies upon. Furthermore, when the State has closed its testimony, the State's Prosecuting Attorney is then in a position to determine upon which count the State will rely. But when the defendant delays the making of such a motion until after he has voluntarily elected to meet both charges and has introduced evidence to contradict the State's evidence on both counts, the motion to require the State to elect is not 'timely made.' It is true in this case that the defendant could not properly have been convicted under both counts of the information, and the court so charged the jury.
The rule with reference to the inference which the jury may draw from the possession by the defendant of property recently stolen, is in some respects the same in both larceny cases and cases charging the receiving or concealing of stolen property, knowing it to have been stolen. However, there is some distinction between the application of the rule in these two classes of cases.
'To sustain a conviction of receiving stolen property 'knowing it to have been stolen,' the evidence must either show that the accused had knowledge at the time he received it that the property was stolen, or that the circumstances of the transaction were sufficiently suspicious to put a person of ordinary intelligence and caution on inquiry.' Broxson v. State, 99 Fla. 1187, 128 So. 628, 629. See Winton v. State, 87 Fla. 104, 99 So. 249; Franklin v. State, 66 Fla. 213, 63 So. 418.
In the case of Revels v. State, 68 Fla. 74, 66 So. 422, 423, it was said:
' In Bellamy v. State, 35 Fla. 242, 17 So. 560, we held as follows:...
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