Wallace v. State

Decision Date05 August 1918
Citation76 Fla. 175,79 So. 634
PartiesWALLACE v. STATE.
CourtFlorida Supreme Court

Error to Circuit Court, Manatee County; C. L. Wilson, Judge.

Tobe Wallace was convicted of larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Upon a charge of larceny, where there is conflict in the evidence as to the intent with which the property was taken, or it is of such a character as to legitimately authorize an inference of a felonious purpose, then the matter should be submitted to the jury without any intimation from the trial court as to the force of presumptions of fact arising from any portion of the testimony.

In cases of larceny, the question of the intent with which the accused took the property, with the theft of which he is charged, is primarily one of fact, to be decided by the jury subject to review by the court.

Where there is substantial competent evidence of all the facts legally essential to support the verdict, and there is nothing in the record to indicate that the jury were influenced by considerations outside the evidence, this court will not disturb the verdict.

COUNSEL H. S. Glazier, of Bradentown, and Frank Redd, of Sarasota, for plaintiff in error.

Van C Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen for the State.

OPINION

WEST J.

Plaintiff in error was convicted, in the circuit court of Manatee county, of the larceny of a calf, the property of another and was sentenced to a term of two years in state prison, this being the minimum penalty for the offense. General Statutes of Florida 1906, § 3299; Compiled Laws 1914.

From this judgment writ of error was taken, and the case is here for review.

The only question presented and argued is the sufficiency of the evidence to support the judgment.

The owner of the animal alleged to have been stolen testified that it was running at large on the range in Manatee county with a herd of his cattle; that when he and those who were assisting him went out, in the month of April, 1917, to pen this herd and mark and brand the calves this calf, which was about 10 or 11 months old, could not be found; that the calf's mother and 'the rest of that tribe' were found, but this calf has not been found; that about a week or ten days after the calf disappeared this witness, the owner, learned that a calf's hide of the color of his calf which had disappeared had been bought by a merchant in Sarasota, and upon an examination of it he recognized and identified it as the hide of his calf; that afterwards the witness and the defendant examined this hide together, and the defendant admitted that he killed the calf from which the hide was taken. There is other evidence in behalf of the state in corroboration of the testimony given by this witness.

The defense is that the calf which the defendant admitted killing was the property of the defendant. He admits killing such an animal, and that the hide was sold to the merchant in Sarasota, but he says that the animal was his. It was driven from the range to the home of defendant at his request, and slaughtered there in the daytime, and those who assisted him in its slaughter testified in his behalf that the defendant claimed to own the calf, and that it was found with a cow which he also claimed to own. He did not deny that he killed such an animal, and so far as the evidence discloses there was no concealment of it.

The contention is made that this case comes within the rule announced in the case of Dean v. State, 41 Fla. 291, 26 So. 638, 79 Am. St. Rep. 186, where it was said, quoting from a decision of the Supreme Court of Alabama, that:

'Where the taking is open, and there is no subsequent attempt to conceal the property,...

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18 cases
  • May v. State
    • United States
    • Florida Supreme Court
    • February 3, 1925
    ... ... them, is not proper, under our system, for an appellate court ... to review. Collinsworth v. State, 82 Fla. 291, 89 ... So. 802; Kirkland v. State, 82 Fla. 119, 89 So. 356; ... Hamlin v. State, 80 Fla. 217, 85 So. 685; Brown ... v. State, 79 Fla. 523, 84 So. 384; Wallace v ... State, 76 Fla. 175, 79 So. 634; Messer v ... State, 75 Fla. 619, 78 So. 680; McCoy v. State, ... 75 Fla. 294, 78 So. 168 ... The ... time allowed by the court for argument was limited to 20 ... minutes. Error is assigned upon this ruling, and it is urged ... here that the ... ...
  • Miller v. State
    • United States
    • Florida Supreme Court
    • December 5, 1918
    ...in the record to show that the jury were influenced by considerations outside the evidence. We will therefore not disturb it. Wallace v. State, 79 So. 634; v. State, 78 So. 680; McCoy v. State, 78 So. 168; Herndon v. State, 73 Fla. 451, 74 So. 511; Barrentine v. State, 72 Fla. 1, 72 So. 280......
  • Britt v. State
    • United States
    • Florida Supreme Court
    • December 18, 1924
    ... ... 449, 73 So. 354; Williams v ... State, 58 Fla. 138, 50 So. 749; John v. State, ... 16 Fla. 554; Robinson v. State, 24 Fla. 358, 5 So ... 6; Williams v. State, 68 Fla. 88, 66 So. 424; ... Thomas v. State, 73 Fla. 115, 74 So. 1; Houston ... v. State, 50 Fla. 90, 39 So. 468; Wallace v ... State, 76 Fla. 175, 79 So. 634; ... [102 So. 763] ... Childers v. State, 74 Fla. 288, 77 So. 99; ... Pelham v. State, 70 Fla. 295, 70 So. 87; ... Phillips v. State, 28 Fla. 77, 9 So. 826 ... [88 ... Fla. 486] This disposes of the first, second, and third ... assignments ... ...
  • Studstill v. State
    • United States
    • Florida Supreme Court
    • May 19, 1922
    ... ... influenced by considerations outside the evidence. Moore ... v. State (Fla.) 91 So. 180; Collinsworth v. State ... (Fla.) 89 So. 802; Kirkland v. State (Fla.) 89 ... So. 356; Hamlin v. State, 80 Fla. 217, 85 So. 685; ... Brown v. State, 79 Fla. 523, 84 So. 384; Wallace ... v. State, 76 Fla. 175, 79 So. 634; Messer v ... State, 75 Fla. 619, 78 So. 680; McCoy v. State, ... 75 Fla. 294, 78 So. 168 ... What we ... have said disposes of the case. Other questions relative to ... the admission or exclusion of evidence do not require ... consideration ... ...
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