JAMES HENDERSON, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a conviction for breaking and entering a dwelling house. The court held that the house was no longer a dwelling house under the statute because the occupant had moved out with no intention of returning.
No, the house no longer qualified as a dwelling house under the statute because the occupant had abandoned it with no intention of returning to occupy it as a dwelling.
“a dwelling house loses its character as such within the meaning of the statute providing punishment 'for breaking and entering a dwelling house if the occupant leaves without the intention of returning to occupy it as a dwelling.”
Establishes the legal principle for determining if a structure is a dwelling house under the statute.
The defendant was convicted of breaking and entering a dwelling house. The former occupant had moved out of the house on February 17, 1919, with no in…
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Ellis, J.
Plaintiff in error was indicted, tried and convicted upon the charge of breaking and entering a dwelling house. The offense Avas alleged to have been committed on March 1st, 1919. The evidence shows that the person whose dwelling house was entered, according to the allegations of the indictment, did once live in the house, but on the 17th day of February, 1919, he moved from the house which was near Laurel Hill to a house at Culver. When he moved away he left some quilts and clothes and other articles that belonged to his sister in the'house, but she had moved away the day before.
Some time in February when the former occupant of the house returned, it is not shown for what purpose, the articles belonging to his sister had been removed. They were afterwards found in defendant’s possession, who said that he found them in a woods near his place, that they were in a sack and wet, that he carried them home, spread them on his fence to dry and then took them in the house.
The case is reversed upon the authority of Smith v. State, decided at the present term, which holds that a dwelling house loses its character as such within the meaning of the statute providing punishment 'for breaking and entering a dwelling house if the occupant leaves without the intention of returning to occupy it as a dwelling.
Judgment reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Vazquez v. State, 350 So. 2d 1094 (Fla. 3d DCA 1977)…a dwelling house loses its character as such within the meaning of the statute providing punishment for breaking and entering a dwelling house if the occupant leaves without the intention of returning to occupy it as a dwelling. Henderson v. State, 80 Fla. 491, 86 So. 439 (1920). Last, even where the premises is classified as community property of the husband and wife and the husband abandons his wife and the property, then ownership may be charged to the wife. See 13 Am.Jur.2d Burglary § 38 at p. 344 (19…
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Johnson v. State, 188 So. 2d 61 (Fla. 3d DCA 1966)…ted by the fact that the home on the premises had been disrupted. The husband had died and the wife had been confined to a mental hospital. The law of Florida is established in Smith v. State, 80 Fla. 315, 85 So. 911 (1920); and Henderson v. State, 80 Fla. 491, 86 So. 439 (1920). The Smith case held: “Temporary absence of the occupant does not take away from a dwelling house its character as such, but it must be made to appear that such occupant left the house animo revertendi in order to constitute an u…
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Tukes v. State, 346 So. 2d 1056 (Fla. 1st DCA 1977)…a house is not enough to make it a dwelling house. In some states, by statute, dwelling houses are the subject of burglary, and may be described as such, whether they are occupied or not.’ ” 85 So. at 912. To the same effect see Henderson v. State, 80 Fla. 491, 86 So. 439 (1920); Johnson v. State, 188 So. 2d 61 (Fla. 3rd DCA 1966); Johnson v. State, 190 So. 2d 601 (Fla. 3rd DCA 1966). In the latter two cases the Third District Court of Appeal remanded cases to the trial court with directions to enter judg…
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