Walker v. State

• Decision Date: 23 September 1902
• Citation: 32 So. 954,44 Fla. 466
• Parties: WALKER v. STATE.
• Court: Florida Supreme Court

32 So. 954

44 Fla. 466

WALKER v. STATE.

Florida Supreme Court

September 23, 1902

Error to criminal court of record, Hillsborough county; William S Graham, Judge.

George Walker was convicted of breaking and entering a dwelling house, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The fact that an accused, charged with breaking and entering with intent to steal, stole nothing, does not affect his guilt, if he broke and entered with intent to steal.

2. Section 5, c. 4405, Laws 1895, which provides that on the trial of a charge of breaking and entering, or entering without breaking, a dwelling house, with intent to commit a misdemeanor or with intent to commit a felony, proof of the entering of such dwelling house in the nighttime, stealthily without consent of the owner or any occupant thereof, shall be prima facie evidence of entering with intent to commit a misdemeanor, in the absence of proof of intent to commit any specific crime, has no application to a case where the entry proven occurred in the daytime.

3. Evidence examined, and found to support the verdict for breaking and entering a dwelling house with intent to steal property of more than the value of $20.

COUNSEL Solon B. Turman and G. E. Mabry, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

CARTER, J.

The plaintiff in error was charged by information filed in the criminal court of record for Hillsborough county with the offense of breaking and entering the dwelling house of one John J. Holloman, with intent to steal the goods and chattels of Holloman of more than the value of $20. Trial was had in March, 1902, and a verdict rendered finding defendant guilty as charged. From the sentence imposed, this writ of error is taken, and the only error assigned relates to the ruling denying defendant's motion for a new trial. This motion was based upon the ground that the verdict was contrary to the law and the evidence.

The defendant offered no testimony. From the testimony introduced by the state, it appears that on March 7, 1902, while the occupants of Holloman's dwelling house were absent between 7 and 11:30 o'clock a. m., the house was broken into, and a window on the west side raised: and scratches were found on the window sill, as if made by tacks in a shoe. The bureau and washstand drawers were rummaged, and the bedclothes turned up and disturbed, as if some one was looking for money or something. Holloman's pants were lying on the bed, his coat on a rocking-chair, and his vest on the floor, though they were left hanging up that morning. Nothing was missed or stolen from the house. The furniture and clothing in the house were worth about $150, and there were between $7 and $8 in money in the kitchen, which was not disturbed. The tracks--one a man's, and the other a woman's--were found leading from the front gate to the west side of the house. Defendant, who lived about one-fourth mile southeast of Holloman's, was seen by Minnie Whitten, Holloman's next-door neighbor, to enter Holloman's front gate and pass aroung the house. This occurred at about 11 o'clock a. m. About 15 minutes afterward, defendant returned, and as he came from around the house he saw Minnie Whitten, and jumped back behind the corner of the house. He then came on down the street by Minnie Whitten's house, passing it about 100 years, and stopped. Minnie Whitten called her husband's attention to defendant, and Whitten walked out on his front porch. Defendant called to him, and inquired where one John Brown lived; returning in front of Whitten's house. Whitten nodded his head in the direction of John Brown's house which was located about one-quarter mile northeast, and defendant asked if he meant that house, pointing to the Holloman house. Whitten told him 'No,' and defendant said he had been to that house (the Holloman house), and found no one at home. Whitten then showed defendant John Brown's house, the top of which was in sight, and he went off in that direction. Whitten testified that defendant must have known where John Brown lived, because he had lived in that neighborhood a number of years. A number of people passed Whitten's house daily, and a number passed on the day in question, but no one else was seen to enter the yard except defendant, though it was possible others may have done so. About half an hour after defendant left Whitten's it was discovered that Holloman's house had been broken into. Holloman's house was situated in Hillsborough county, just north of Ybor City.

Plaintiff in error contends that the evidence is not sufficient to sustain a verdict against him for breaking and entering with intent to steal property of any value, and that the evidence will not support the finding that the intent was to steal property of more than $20 in value.

I. The evidence establishes beyond question the fact that Holloman's house was broken and entered at the time charged, and while no witness saw the defendant in the house or attempting to effect an entrance, we think the jury were justified in finding that he, and no other, was guilty of such breaking and entry. He was seen going into the yard and around the house shortly before...