OSCAR BIRD, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Oscar Bird was convicted of larceny for taking a bull calf he believed was his own. The Florida Supreme Court reversed, holding that evidence of open taking without concealment and no proof of felonious intent is insufficient to sustain a larceny conviction.
The court held that where taking is open in the presence of others with no concealment, and the testimony raises a presumption of innocent taking with nothing inferring felonious purpose, a verdict of guilty for larceny cannot be sustained.
“His acts as shown by the record are perfectly consistent with honest conduct, however mistaken he may have been.”
Establishes that the defendant's conduct was compatible with an honest mistake about ownership, not criminal intent.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBird took a bull calf openly in daylight with at least one witness present and led it to his home along a public highway. Bird owned a similar bull ca…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Presumption Of Fact cases and more on FLexlaw
Hocker, J.,
(after stating the facts). — In considering the evidence in this case we can discover no substantial difference in probative effect between it and the evidence in Dean v. State, 41 Fla. 291, 26 South. Rep. 638. In both cases the animals were taken openly in the daylight under claim of ownership — in the Dean case in the presence of several witnesses — -in this case in the presence of at least one witness. In both cases they were led to the defendants home, along the public highway. In each case several witnesses swear that the animals belonged to the defendants and that they had raised them from calves. In each case the animals were sold openly, and there is not a particle of evidence to show in either case concealment or an attempt at it. In the case at bar there can be no question that the defendant owned a bull calf of about the same age as the one in dispute, of about the same color and bearing a mark so nearly resembling that of the prosecutor that an ordinary person might not readily distinguish between them. In this respect the evidence for the State in the Dean case was stronger than in the one at bar. The defendant’s bull calf, had strayed off about February and the fact that in July the calf in dispute was somewhat darker than the defendant’s calf was in February was not such a circumstance as should have necessarily advised him that it was not his own. When he took the calf he was not advised by Shuman that any one else claimed it, and the uncontradicted evidence is that he did not know that any one else claimed it. We are unable to discover in the record any testimony that the defendant took and appropriated the bull calf animo furandi. His acts as shown by the record are perfectly consistent with honest conduct, however mistaken he may have been. In Long v. State, 44 Fla. 134, text 140, 32 South. Rep. 870, this court said that the second head-note in Dean v. State, must not be understood as stating a rule of law to be given in charge to a jury in a prosecution for larceny, but a presumption of fact which the jury may apply, and which may guide the court in cases where it is applicable in determining the sufficiency of the evidence to support a verdict of guilty. This court further said that “where the taking is open in the presence of others, not amounting to a robbery, and there is no concealment, or in short where the testimony as to the taking standing alone raises a presumption of fact in favor of an innocent taking, and there is nothing in it from which a jury may legitimately infer a felonious purpose, then a verdict against the accused can not be sustained, and it would be the duty of the court to set it aside.” This doctrine is applicable to the case at bar. The evidence disclosed by the record is not sufficient to sustain a conviction for larceny. It is, therefore, considered and ordered that the judgment be reversed and a new trial awarded, at the cost of the county of Jefferson.
Taylor, C. J., and Cockrell, J., concur. Carter, P. J., and Shackleford and Whitfield, JJ„ concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bass v. State, 58 Fla. 1 (Fla. 1909)…ion for larceny, but a presumption of the fact which the jury may apply in proper cases and which may guide the court in cases where it is applicable in determining the sufficiency of evidence to Support a verdict of guilty.” Also see Bird v. State, 48 Fla. 3, 37 South. Rep. 525. This assignment has not been sustained. The third assignment is based upon the refusal of the following requested instruction: “The jury is further instructed that the rule that a thief commits a new and distinct larceny when h…
-
Tobe Wallace v. State, 76 Fla. 175 (Fla. 1918)…ly 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.” See also Bird v. State, 48 Fla. 3, 37 South. Rep. 525; Bass v. State, 58 Fla. 1, 50 South. Rep. 531. Now, it is well established that in cases of larceny the question of the intent with which the accused to'ok the property, with the theft of which he is charged, is primarily one of…
-
Cooper v. State, 82 Fla. 365 (Fla. 1921)…t the property was taken “animo furandi/’ and where it clearly appears that the taking was perfectly consistent with honest conduct, although the party charged with the crime may have been mistaken, he can not be convicted of larceny. Bird v. State, 48 Fla. 3, [*367] 37 South. Rep. 525; Long v. State, 44 Fla. 134, 32 South. Rep. 870, and in Dean v. State, 41 Fla. 291, 26 South. Rep. 638, it is held by this court that: “In charges of larceny where the taking is open, and there is no subsequent attempt to…
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
- Mose Dean v. State, 41 Fla. 291 (Fla. 1899)
- Long v. State, 44 Fla. 134 (Fla. 1902)