E. J. TEDDER, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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E.J. Tedder was convicted of grand larceny for allegedly stealing twelve hogs. The Florida Supreme Court reversed the conviction, holding that the defendant's open and undenied taking of the hogs, combined with his open sale of them and claim of ownership, raised a presumption against felonious intent that the state failed to rebut with clear and convincing evidence.
The conviction for larceny was unauthorized and reversed. When a larceny charge involves an open taking with no subsequent concealment and the defendant avows ownership, a strong presumption arises that there was no felonious intent, and this presumption can only be rebutted by clear and convincing evidence, which the state failed to provide.
“In charges of larceny where the taking is open, and there is no subsequent attempt to conceal the property, and no denial, but an avowal of the taking, a strong presumption arises that there was no felonious intent, that must be repelled by clear and convincing evidence, before a conviction is authorized.”
Establishes the controlling legal standard for larceny cases involving open takings and avowal of ownership
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Join FLexlaw to unlock all legal intelligenceTedder owned a large number of hogs that ranged with or near hogs owned by the prosecuting witnesses J.M. Ellison and Rans Green. The disputed hogs ha…
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Taylor, J.
The plaintiff in error, referred to hereinafter as the defendant^ was tried, convicted and sentenced for the crime of grand larceny*of twelve head of hogs in the Circuit Court of Taylor County, and by writ of error bringe such judgment here for review. The indictment merely describes the property alleged, to have been stolen as being: “twelve hogs of the value of five dollars each, and of the total valúe of sixty dollars of the goods and chattels of J. M. Ellison and Rans Green.”
• This case falls within the rule laid down so often by this and other courts, that: “In charges of larceny where the taking is open, and there is no subsequent attempt to conceal the property, and no denial, but an avowal of the taking, a strong presumption arises that there was no felonious intent, that must be repelled by clear and convincing evidence, before a conviction is authorized.” Baker v. State, 17 Fla. 406; Charles v. State, 36 Fla. 691, 18 South. Rep. 369; Dean v. State, 41 Fla. 291, 26 South. Rep. 638; Long v. State, 44 Fla. 134, 32 South. Rep. 870.
The defendant'was shown to be the owner of a large number of hogs some of which ranged with or near those of the prosecuting witnesses. The hogs in question were shown to have had the marks in one ear obliterated, but the change made did not put them in the" marks of the defendant, but did show that they were thereby put in one of the marks owned by the prosecuting witnesses. There was no proof that the defendant had anything to do with changing the ear marks of the hogs in dispute, except that he saw the chief prosecuting-witness, who claimed’that the hogs belonged to him and his partner and told him that some of his men had been changing the marks of some of his, the defendant’s hogs, and that he had seen some of them in a pen at his, defendant’s house, and asked the prosecuting witness to-come over and see them. The defendant sold the h§gs in -question to three different parties in the neighborhood where he resided, and told the chief prosecuting-witness the names of the parties to whom he had sold them, claiming them to be his own. The’ gathering and sales of the hogs were openly made in the day time, and there was no attempt to conceal them or to conceal their sale, but on the contrary an open avowal of the fact with the names of the parties to whom they were sold. None of this evidence had a scintilla of contradiction. There was no evidence to gainsay br question the good faith of the defendant’s claim to the ownership. Under these circumstances the conviction for larceny was unauthorized and The judgment of the court below is hereby reversed at the cost of Taylor County.
Browne, C.J., and Shackleford, Whitfield and Ellis, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rodriguez v. State, 396 So. 2d 798 (Fla. 3d DCA 1981)…a reasonable and prudent man. Accord, Kilbee v. State, 53 So. 2d 533, 536 (Fla.1951); Maddox v. State, 38 So. 2d 58 (Fla.1948); Sass-nett v. State, 156 Fla. 490, 23 So. 2d 618 (1945); Cooper v. State, 82 Fla. 365, 90 So. 375 (1921); Tedder v. State, 73 Fla. 861, 75 So. 783 (1917); Uber v. State, 382 So. 2d 1321, 1322 (Fla. 1st DCA 1980); Board of Regents v. Videon, 313 So. 2d 433, 435 (Fla. 1st DCA 1975).3 [*800] The state contends that the defendants may not raise the issue because counsel did not formall…
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Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985)…as no felonious intent, which must be repelled by clear and convincing evidence, before a conviction is authorized.’’ Cooper v. State, 82 Fla. 365, 366, 90 So. 375, 375 (1921) (syllabus by court, para. 2) (emphasis added); see also Tedder v. State, 73 Fla. 861, 75 So. 783 (1917); Dean v. State, 41 Fla. 291, 26 So. 638 (1899). No such “clear and convincing evidence” was presented below to negate this aforesaid affirmative showing of innocence. Although a high school plumbing class at MacArthur South had…
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Berzin v. State, 215 So. 2d 897 (Fla. 3d DCA 1968)…nable doubt, that there was a felonious intent to commit larceny on October 29, 1966. This being a necessary ingredient to establish the crime of grand larceny and this record lacking such, we reverse upon the following authorities: Tedder v. State, 73 Fla. 861, 75 So. 783; Helton v. State, 135 Fla. 458, 185 So. 864; Maddox v. State, Fla. 1948, 38 So. 2d 58; Ricard v. State, Fla. App.1966, 181 So. 2d 677; Reid v. Florida Real Estate Commission, Fla.App.1966, 188 So. 2d 846. Therefore, the conviction here…
Authorities Cited
- Baker v. State, 17 Fla. 406 (Fla. 1879)
- Wiley Charles v. State, 36 Fla. 691 (Fla. 1895)
- Mose Dean v. State, 41 Fla. 291 (Fla. 1899)
- Long v. State, 44 Fla. 134 (Fla. 1902)