G. D. PRESLEY, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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G. D. Presley was convicted of breaking and entering a warehouse with intent to commit grand larceny and grand larceny. On writ of error to the Florida Supreme Court, Presley challenged various evidentiary and instructional rulings at trial. The court affirmed the conviction, finding no reversible error in the trial court's evidentiary rulings or jury instructions.
The trial court committed no reversible error. The written list was properly used only to refresh memory, not introduced as independent evidence. Testimony about the defendant's appearance and prior criminal conduct was admissible as bearing on criminal intent. The search testimony was not shown to be improper. The refusal to give cautionary instructions regarding accomplice testimony was not harmful error. All jury instructions were proper and did not assume the defendant's guilt.
“a written list of the goods missing from the warehouse the morning after the alleged crime was committed was used by a witness to refresh his memory, and that the writing was not introduced as independent evidence in violation of the rule announced in Jenkins v. State”
Establishes the proper use of memory-refreshing materials without violating evidentiary rules
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Join FLexlaw to unlock all legal intelligencePresley was charged with breaking and entering a warehouse with intent to commit grand larceny and with grand larceny. A written list of missing goods…
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Whitfield, C. J.
— The plaintiff in error having been convicted in the Criminal Court of Record of Walton County on an information in one count charging breaking and entering a warehouse with intent to commit the felony of grand larceny and in another count grand larceny, took writ of error. The bill of exceptions does not contain all the testimony, but enough appears to show that a written list of the goods missing from the warehouse the morning after the alleged crime was committed was used by a witness to refresh his memory, and that the writing was not introduced as independent evidence in violation of the rule announced in Jenkins v. State, 35 Fla. 737, 18 South. Rep. 182, 48 Am. St. Rep. 267; Jenkins v. State, 31 Fla. 196, text 210, 12 South. Rep. 677.
A witness was asked 'how the defendant looked when he saw some of the stolen property recovered. This was not error. Higginbotham v. State, 42 Fla. 573, 29 South. Rep. 410, 89 Am. St. Rep. 237. No motion was made to strike the answer that defendant “looked like another party looks who has done wrong,” even if the answer was subject to the motion under the rule stated in the case last cited.
A witness who had been jointly informed against with the defendant, testified to a previous similiar crime by the two and the court denied a motion to strike this testimony. This evidence tended to show the criminal conduct and intent of the defendant bearing on the issue being tried, and there was no abuse of discretion in refusing to strike it. See Wallace v. State, 41 Fla. 547, 26 South. Rep. 713.
A witness was asked why he searched the defendant’s house. This question was objected to as irrelevant and immaterial. It does not on the record appear to be subject to the objections made to it, and no motion was made to strike the answer that the witness believed the goods were in the house, if the answer was subject to a motion to strike.
A refusal of the court to instruct the jury that the testimony of an' accomplice “should be received with great caution” is not shown to be harmful error, as all the evidence is not here. See Meyers v. State, 43 Fla. 500, 31 South. Rep. 275.
A charge that to find the defendant guilty, the jury “must find from the evidence beyond a reasonable doubt that the offense was committed in Walton County, Florida, within two years prior to the filing of the information” is not erroneous, since it does not assume the commission of the offense by the accused.
A charge that “the unlawful removing or pushing aside of anything used to enclose or secure the contents of a building is a breaking” does not appear to be erroneous when all the testimony adduced at the trial is not brought here.
Any feloneous taking or asportation of personal property may be larceny, therefore, the omission of the word “away” from a charge as ot “the feloneous taking and carrying of the personal property of another” is not per se error. See Williams v. State, 46 Fla. 80.
A charge containing the words “when a person is found in the exclusive possession of goods recently stolen or has the goods concealed on his premises,” includes the idea that the person knowingly had possession of or concealed the goods. See McDonald v. State, 56 Fla. 74.
No other points need be considered.
The judgment is affirmed..
Taylor, Shackleford, Cockrell and Hocker, J. J., concur.
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Emelio Suarez v. State, 95 Fla. 42 (Fla. 1928)…erwise be open to him. See also Langford v. The State, 33 Fla. 233, 14 So. 815; Roberson v. The State, 40 Fla. 509, 24 So. 474; Gafford v. The State, 79 Fla. 581, 84 So. 602; Nickels v. The State, 90 Fla. 659, 106 So. 479, 488; Presley v. The State, 63 Fla. 37, 57 So. 605; Pittman v. State, 51 Fla. 94, 41 So. 385; 16 C. J. 586, et seq.; 8 R. C. L. 198-206. Without discussing separately the numerous assignments of error based upon the admission of testimony over defendants’ objections, we think it would b…
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Coston v. State, 139 Fla. 250 (Fla. 1939)…581, 84 So. 602; Denton v. State, 66 Fla. 87, 62 So. 914; Suarez v. State, 95 Fla. 42, 115 So. 519; Langford v. State, 33 Fla. 233, 14 So. 815; Roberson v. State, 40 Fla. 509, 24 So. 474; Nickels v. State, 90 Fla. 659, 106 So. 479; Presley v. State, 63 Fla. 37, 57 So. 605; Pittman v. State, 51 Fla. 94, 41 So. 385; 16 C. J. 586, et seq.; 8 R. C. L. 206. Counts 9 and 10 of the indictment charged George Coston and Donald Long with unlawfully and feloniously and of their malice aforethought with the adultera…
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Shep Kennedy v. State, 140 Fla. 124 (Fla. 1939)…87, 62 So. 914; Denton v. State, 66 Fla. 87, 62 So. 914; Suarez v. State, 95 Fla. 42, 115 So. 519; Landlord v. State, 33 Fla. 233, 14 So. 815; Roberson v. State, 40 Fla. 509, 24 So. 474; Nickels v. State, 90 Fla. 659, 106 So. 479; Presley v. State, 63 Fla. 37, 57 So. 605; Pittman v. State, 51 Fla. 94, 41 So. 385; 16 C. J. 586, et seq.; 8 R. C. L. 206. The record shows that the witness Bessie Helton, after entering a plea of guilty to the information, upon arraignment took the stand as a witness for the…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wallace v. State, 26 So. 713 (Fla. 1899)
- Angus McDonald v. State, 56 Fla. 74 (Fla. 1908)
- Jenkins v. State, 35 Fla. 737 (Fla. 1895)
- Myers v. State, 43 Fla. 500 (Fla. 1901)
- Higginbotham v. State, 42 Fla. 573 (Fla. 1900)
- Jenkins v. State, 31 Fla. 196 (Fla. 1893)
- Williams v. State, 46 Fla. 80 (Fla. 1903)