Wethington v. State

• Decision Date: 18 November 1947
• Citation: 159 Fla. 670,32 So.2d 458
• Parties: WETHINGTON v. STATE.
• Court: Florida Supreme Court

32 So.2d 458

159 Fla. 670

WETHINGTON v. STATE.

Florida Supreme Court

November 18, 1947

Appeal from Criminal Court of Record, Orange County; W M. Murphy, judge.

Clark W Jennings, of Orlando, for appellant.

J. Tom Watson, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and Rebecca Bowles Marks, Sp. Asst. Atty. Gen., for appellee.

CHAPMAN, Justice.

Charles Buchan Herman Buchan and Royce Wethington were informed against and convicted in the Criminal Court of Record of Orange County Florida, for the crimes of grand larceny and breaking and entering with the intent to commit grand larceny. From a judgment and sentence to five years in the State Penitentiary imposed against Royce Wethington an appeal has been perfected here and several grounds urged for a reversal.

It is contended that language employed by the County Solicitor during the progress of the trial was prejudicial to the appellant. It is, in part, viz.:

'Mr. Ellars: I object. Mr. Jennings has interfered with the State's running of the case. He has done nothing but interfere. Yesterday he prevented Mr. Hall's clients from pleading guilty, and he has just continually interfered, and----

'Mr. Jennings I object to that your Honor, making that statement before the jury. I certainly do. I move this Court that it declare a mistrial for that statement made by the Prosecutor in the presence of the jury.

'Mr. Hall: I join in the objection.

'Judge: Gentlemen of the Jury, you will not regard as evidence in this case or pay any attention to the remarks of counsel before the Court; that is not evidence.

The motion is denied, and exception noted.'

When the appellant was testifying in his own behalf and being interrogated by his counsel the following occurred:

Mr. Jennings: 'Q. Have you been convicted of another offense during your entire life? A. No, sir. I have never been in a court room since that.'

Mr. Ellars, County Solicitor [to counsel for appellant]: 'Q. Have you seen Wethington's FBI record?'

Mr. Jennings: 'Your Honor, the remark just made by the prosecution was entirely. uncalled for and a violation of all the rules of evidence.'

Mr. Cokes gave testimony as to the general reputation of the defendant, when the following occurred:

Mr. Jennings: 'Q. Do you know Mr. Wethington's reputation in the community in which he lives for integrity and diligence and scholarship? A. Only on my associations with him there in the school. They were good.'

Cross Examination. By Mr. Ellars: 'Q. You don's know his reputation then? A. Only in school.

'Q. You know what he did in school, but you don't know what his reputation is? A. His general reputation?

'Q. What people say about you in the community in which you live? You don't know his general reputation do you then? A. No, sir.

'Q. You didn't know he had served eighteen months in the Federal Penitentiary? A. No, sir.'

The evidence discloses that O. B. White operated a business in Orlando, Florida, on October 31, 1946, and in this building was a safe containing $614, consisting of paper money, silver dollars, a cigar box of pennies, and several rolls of nickels and pennies; valuable papers, three watches and three pistols. The building was entered on the night of October 31, 1946, the safe placed in truck, which was driven out near Lake Fairview, about six miles from Orlando, and the safe opened and contents taken, but the safe was left where it was opened. A Mr. Parrish, living nearby, heard the truck, observed that it was stuck, and went fom his house to the truck to help them out of the mud. He found three men about the truck but failed to identify the appellant as one of the three. The truck was near the Parrish home from 12:00 o'clock until 12:30.

The appellant was seen in the truck with Charles Buchan by patrolmen about 10:30 or 11:00 on the way from the Legion Home to get some whiskey and the truck was later seen on West Church Street near the Sheldon Hotel around 11:15. The appellant was arrested by the officers in the lobby of the Sheldon Hotel the next day and the arresting officers took from his person a hundred dollar bill, silver dollars, a roll of nickels and ten and twenty dollar bills totaling $162.85. The officers testified that the appellant at the time of his arrest told them he got the money in a poker game. The appellant when on the stand as a witness testified that Charles Buchan paid him $120 on November 1st as part payment on an account or debt due by Charles Buchan to the appellant. Charles Buchan was on trial with appellant under the same information and the State had previously offered in evidence a written confession to the crime as made by Charles Buchan. Charles Buchan did not deny or contradict the statement of the appellant about paying him $120 on the morning of November 1, 1946.

The question here presented is the sufficiency of the evidence as adduced by the state to sustain the material allegations of counts one and two of the information. Section 811.01, Fla.Stats.1941 F.S.A., makes the taking of personal property of the value of fifty dollars or more grand larceny. Larceny may be defined as the felonious taking and carrying away of personal property of another, without the owner's consent and with the intent to permanently deprive the owner of his property and convert it to the taker's use. Fitch v. State, 135 Fla. 361, 185 So. 435, 125 A.L.R. 360, Section 810.02,...