Tomlinson v. State

• Decision Date: 23 October 1937
• Citation: 129 Fla. 658,176 So. 543
• Parties: TOMLINSON v. STATE.
• Court: Florida Supreme Court

176 So. 543

129 Fla. 658

TOMLINSON v. STATE.

Florida Supreme Court, Division A.

October 23, 1937

Error to Circuit Court, Suwannee County; R. H. Rowe, Judge.

Ben Tomlinson was convicted of breaking and entering a dwelling house of another in the nighttime with intent to commit a misdemeanor, and he brings error.

Affirmed.

COUNSEL C. A. Avriett, of Jasper, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.

OPINION

BUFORD, Justice.

Plaintiff in error was convicted of the offense of breaking and entering a dwelling house of another in the nighttime with intent to commit a misdemeanor. To the judgment of conviction he prosecutes writ of error. He assigns one error; that the court erred in overruling defendant's motion for new trial. The motion for new trial contained three grounds, as follows:

'(1) The verdict is contrary to the evidence.

'(2) The verdict is contrary to the law.

'(3) The court erred in denying motion of defendant to strike from the consideration of the jury such evidence as was obtained by the State within the dwelling house of the defendant, which dwelling house was entered, searched, and a pair of shoes found therein and admitted in evidence and the details of the action of the bloodhound therein trailing a pair of shoes therein without a search warrant, such evidence being so illegally obtained.'

The record shows that the shoes referred to were found in the home of Bethel Tomlinson, who was the father of Ben Tomlinson, plaintiff in error. It shows that Ben Tomlinson had slept in the bed, beside which the shoes were found, a part of the night upon which the alleged breaking and entering occurred.

The record further shows, by the testimony of Bethel Tomlinson himself, that when the officers arrived at his house and told him that they would like to go into 'that room,' he said: 'I told him to go right in; he was welcome; and Mr. Crackmore went around to the front and came into the front room where my boy stayed and when he went in he went to searching and he looked all around and turned the bed upside down and looked to his own satisfaction.'

It therefore appears that the contention of the plaintiff in error that the search was unlawful is without merit. See Carlton v. State, 111 Fla. 777, 149 So. 767.

The state relied for a conviction upon the fact that the home of Mr. Helvenston in Live Oak, Fla., was broken into and entered in the nighttime by some one effecting entrance through a window; that Mr. Helvenston was aroused by an alarm given by his daughter; that the intruder left the house as Helvenston went to his daughter's room; that Helvenston could only identify the intruder as a negro boy; that the intruder took from the room of Helvenston's daughter a pocketbook containing about $5 and a little loose change, besides stamps and other trinkets, all of the value of about $25; that it was necessary for the intruder to open the window through which he left the house to get into the house; that the alarm was then given and officers came to the Helvenston home. Upon learning what had occurred, one of the officers immediately went to Lake City and procured a well-trained and reliable bloodhound. They brought this dog to the scene of the crime. The dog immediately took the track, which was plainly seen on the ground, of a person wearing tennis shoes, and followed that track to the shoes found under the defendant's bed, which were tennis shoes with markings on the bottom which fitted the markings in the track; that the shoes were placed in the tracks and fitted them exactly; that at a number of places between the place where the dog took the trail under Helvenston's window to the place where the shoes were found under the side of defendant's bed the officers were able to see the track and identify it as the same track which they followed from the scene of the crime.

The defendant freely admitted that the shoes were his shoes; that he had worn them on the night when the robbery was committed; and that he came home after midnight. He claimed that he had been to a picture show, and did not break into the Helvenston house.

In Whetston v. State, 31 Fla. 240, 12...