BERTHA LEE MCDOWELL, ALIAS BERTHA LEE MCDOWER,
v.
STATE OF FLORIDA
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Bertha Lee McDowell was convicted of grand larceny for allegedly receiving $323 from Sol Dunston at Orange Park on January 3, 1947. McDowell appealed, challenging the sufficiency of evidence, identity establishment, and admissibility of a co-defendant's statements, but the Florida Supreme Court affirmed her conviction and two-year prison sentence.
The conviction is affirmed. The evidence was sufficient to present a jury question regarding whether McDowell received the money, identity was adequately established, admissions of the co-defendant were properly admitted, and the State was authorized to prosecute under the grand larceny statute rather than the alternative statutes suggested.
“The witnesses for the State testified that she did receive from Dunston the $323.00 and simultaneously presented him with a receipt for the money and the receipt was admitted in evidence. There are presented disputes and conflicts in the evidence for a jury under proper instructions.”
Establishes that conflicting evidence regarding receipt of the money presented a factual question for the jury.
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Join FLexlaw to unlock all legal intelligenceMcDowell and Richard Jefferson were convicted in Clay County Circuit Court for grand larceny. The State alleged McDowell received $323 from Sol Dunsto…
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The appellant, Bertha Lee McDowell, alias Bertha Lee McDower, and Richard Jefferson, alias Willie McKinley, were convicted in the Circuit Court of Clay County, Florida, for the crime of grand larceny and each was by the trial court sentenced to serve a period of two years in the State Prison at hard labor. Bertha Lee McDowell, alias Bertha Lee McDower, has perfected an appeal here.
Counsel for appellant contends that the judgment should be reversed because: First, the testimony of the State is vague, indefinite and legally insufficient to show that the appellant received the $323.00 of Sol Dunston. The answer to the contention is that the appellant and her witnesses testified that she did not receive the money at Orange Park from Dunston about 1:30 P. M. on January 3, 1947. The witnesses for the State testified that she did receive from Dunston the $323.00 and simultaneously presented him with a receipt for the money and the receipt was admitted in evidence. There are presented disputes and conflicts in the evidence for a jury under proper instructions.
Second, it is contended that the identity of the appellant was not sufficiently established. We find abundant evidence in the record to establish the identity of the appellant as the person receiving from Dunston the money. It is nothing more or less than a question of fact for the jury. What has by us been said as to the second question posed is applicable to the third question argued in the brief.
It is contended that the trial court erred in receiving into evidence statements and admissions made on the part of Richard Jefferson, alias Willie McKinley, over the objection of counsel. The information charged the appellant as principal and further charged that Richard Jefferson, Alias Willie McKinley, and W. W. Turner, alias John Doe, as accessories and *590that they were present, assisting, counseling and aiding in the commission of the crime. It is true that an admission or confession made by an accessory could not be admitted against the appellant when it appears that the admission or confession was not made in her presence. Counsel for the appellant, as shown by the record, was by the trial court given an opportunity to approve or disapprove the proposed charges or instructions for the jury and he approved the same.
Counsel for appellant points out that the information in the case at bar should have been drafted under Section 817.01, F.S.A., or Section 811.01, F.S.A., and not under our grand larceny statute. It is possible that the information could have been drafted and the cause prosecuted under either of the cited Sections but the prosecution, as shown by the record, elected to prosecute under a different Section. The course pursued by the State Attorney in the court below is sustained by our adjudications. See Campbell v. State, 155 Fla. 359, 20 So. (2nd) 127; Haynes v. State, 147 Fla. 713, 3 So. (2nd) 385; Fitch v. State, 135 Fla. 361, 185 So. 435, 125 A.L.R. 360; Bussart v. State, 128 Fla. 891, 176 So. 32.
We fail to find error in the record and accordingly the judgment appealed from is affirmed.
THOMAS, C. J., TERRELL and SEBRING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Tatzel v. State, 356 So. 2d 787 (Fla. 1978)…ver, there is no prohibition upon the State classifying the same type of conduct as constituting more than one offense. In such instance, discretion is vested in the State to determine for which offense a prosecution will be made. McDowell v. State, 160 Fla. 588, 36 So. 2d 180 (1948); Campbell v. State, 155 Fla. 359, 20 So. 2d 127 (1944); McConnell v. State, 298 So. 2d 550 (Fla. 2d DCA 1974). From a policy standpoint, even assuming the merit of appellant’s argument, it is not the province of this Court to…
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State v. Benny Fred McCURDY, 257 So. 2d 92 (Fla. 2d DCA 1972)…on-exclusive. Numerous Florida cases illustrate the proposition that where the same act is a violation of two or more separate statutes, prosecution may be had under either or any of them, at the election of the prosecutor. McDowell v. State, 1948, 160 Fla. 588, 36 So. 2d 180; Fitch v. State, 1939, 135 Fla. 361, 185 So. 435, 125 A.L.R. 360; Stratton v. State, Fla.1955, 77 So. 2d 865; Fountain v. State, Fla.App.1966, 182 So. 2d 45; Hattaway v. United States, C.A. 5 1968, 399 F. 2d 431; Ennis v. State, Fla.1…
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Colebrook v. State, 205 So. 2d 675 (Fla. 3d DCA 1968)…nces. All parties contend that there was insufficient competent evidence to sustain the jury verdict. On an issue relating to the identification of an accused, a question of fact is presented which must be determined by the jury. McDowell v. State, 160 Fla. 588, 36 So. 2d 180 (1948). We find from a review of the record that it contains sufficient competent, substantial evidence which, if believed by the jury, would support the verdict of guilty. Wright v. State, Fla.App.1966, 182 So. 2d 264. The victim tes…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ira Fitch v. State, 135 Fla. 361 (Fla. 1938)
- Metro. Life Ins. Co. v. Poole, 147 Fla. 686 (Fla. 1941)
- Campbell v. State, 155 Fla. 359 (Fla. 1944)
- Bussart v. State, 128 Fla. 891 (Fla. 1937)
- Kichinko v. Scarborough, 155 Fla. 358 (Fla. 1944)
- Haynes v. State, 147 Fla. 713 (Fla. 1941)