JESSE ALBRITTON, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Jesse Albritton was convicted of larceny of a cow allegedly belonging to six named owners. The Florida Supreme Court reversed his conviction, holding that the State failed to prove non-consent of all owners, which is an essential element of larceny.
The conviction must be reversed because the State failed to prove non-consent of all owners, which is an essential element of the crime of larceny. Non-consent of the owner cannot be presumed and must be affirmatively proven; the absence of owners must be accounted for or circumstances must exclude every reasonable presumption of consent.
“The non-consent of the owner must be proved, as it cannot be presumed from the taking.”
Establishes the fundamental principle that non-consent is an essential element of larceny that must be affirmatively proven, not presumed.
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Join FLexlaw to unlock all legal intelligenceAlbritton was indicted for stealing a cow owned by six persons: J. L. Towles, S. M. Towles, W. A. Towles, Mrs. Alberta Chaires, Mrs. Hettie Hogans, an…
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Browne, C. J.
-The sole question presented by the record in this cause is the sufficiency of the evidence to support the verdict. The indictment charged the defendant with the larceny of one cow, the property of “Mrs. Alberta Chaires, J. L. Towles,. S. M.. Towles, Mrs. Hettie Hogans, Mrs. Mattie Lou Howard, and W. A. Towles.” It was proven that J. L. Towles, S. M. Towles and W. A. Towles did not give or sell the cow to the defendant, and did not give their consent for him to kill it. Mrs. Alberta Chaires, Mrs. Hettie Hogans and Mrs. Mattie Lou Howard did not testify and there is nothing in the record to show that they did not give or sell the cow to the defendant or give their consent for him to kill it.
The cow alleged to have been stolen was one of a num-, ber of range cattle belonging to the Towles’ heirs named in the indictment, and it does not appear from the testimony that the stock of cattle was in the exclusive custody and control of any one of the owners, or of any other person.
Underhill .on Criminal Evidence (2nd ed.) Section 295, says: “The non-consent of the owner must be proved, as it cannot be presumed from the taking.” Citing State v. Storts, 138 Mo. 127, 39 S. W. 483; Garcia v. State, 26 Tex. 209, 210, 82 Am. Dec. 606 ; Wilson v. State, 12 Tex. App. 481, 487. If the absence of the owner is satisfactorily accounted for “his non-consent may be proved by circumstantial evidence, provided the circumstances are such as to exclude every reasonable presumption that the owner consented.” Ibid, citing Carroll v. People, 136 Ill. 456, 465, 466, 27 N. E. 18; Rex. v. Hazy, 2. C. & P. 458; State v. Skinner, 29 Ore. 599, 46 Pac. 368; Trafton v. State, 5 Tex. App. 480; Files v. State, 36 Tex. Or. 206, 36 S. W. 93; State v. Porter, 26 Mo. 201, 203; 2 Russ. on Crimes, 737; George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052; Ray v. State, 4 Ga. App. 67, 60 S. E. 816; Van Syoc. v. State, 69 Neb. 520, 96 N. W. 266; Jordan v. State, 51 Tex. Cr. 646, 104 S. W. 900; State v. Faulk (S. Dak. 1908) 116 N. W. 72; Wilson v. State, 45 Tex. 76, 78, 23 Am. 602; Housh v. People, 24 Colo. 262, 50 Pac. 1036.
There were six persons named in the indictment as the owners of the cow, and three of them failed' to testify that they did not give their consent to the killing. Their absence was not accounted for, nor were there any circumstances proven that would exclude every reasonable presumption that they consented. The non-consent of all the owners was an essential element of the offense charged, and the failure to próve the non-consent of three of the owners is fatal to the conviction.
The evidence does not sustain the verdict, and the judgment is reversed.
Taylor, Whitfield, Ellis and West, J. J., concur.
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Groover v. State, 82 Fla. 427 (Fla. 1921)…return of the property at the time he carried it away they could have under that charge acquitted him. It is contended that the State failed to prove the “non consent” of the owner of the automobile to the taking by the accused. Albritton v. State, 81 Fla. 684, 88 South Rep. 623. The defendant testified, that he was going to take his wife away. Where he did not inform the Court but that he was to take her out of the State is shown by his next words, “I went over to. Valdosta and tried to sell some stock…
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Damico v. State, 153 Fla. 850 (Fla. 1943)…surer. In that way she expected to recoup a part of her investment in the venture. Pursuant to such agreement she left the safe unlocked and enabled the appellant to commit the crime. To support his contention appellant has cited Albritton v. State, 81 Fla. 684, 88 So. 623 and several other cases of like import. Such authorities have no application to the facts of this case because while the secretary-treasurer was finan [*853] cially interested in the store the title to the property was in the company and…
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Bussart v. State, 128 Fla. 891 (Fla. 1937)…. S. R. 166, 8 Ann. Cas. 284, 7 L. R. A. (N. S.) 1149; Thorne v. Turck, 94 N. Y. 90, 46 Am. Rep. 126, because of the absence of any trespass in the taking. Stewart v. People, 173 Ill. 464, 50 N. E. 1056, 64 A. S. R. 133. See also Albritton v. State, 81 Fla. 684, 88 So. 623. “If the owner intends to part with his entire ownership ' in the property, instead of with his mere possession, the offense is not larceny, but is something else, either cheating or obtaining property by false pretenses, generally the…
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