ROY SMITH ALIAS TOM GREEN, PLAINTIFF IN ERROR,
v.
STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a conviction for breaking and entering because the state failed to prove the ownership of the dwelling entered as alleged in the information. This case highlights the importance of precise allegations and proof in criminal proceedings.
Yes, a variance between the alleged ownership of a dwelling and the proven ownership is a fatal error that requires reversal of a breaking and entering conviction.
“The judgment should be reversed because of the variance between the allegation and proof as to ownership.”
States the primary reason for reversal.
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Join FLexlaw to unlock all legal intelligenceRoy Smith was charged with breaking and entering a dwelling owned by Frank Heide with intent to commit grand larceny. The evidence at trial showed the…
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Ellis, C. J.
Information was filed in the Criminal Court of Record for Dade County'Charging the plaintiff in error with the offense of breaking and entering a dwelling place in Miami, the property of Frank Heide, “with intent to commit a felony, to-wit: Grand Larceny, with intent to take, steal and carry away money, goods and chattels of the value of more than Fifty ($50.00) Dollars”. The accused pleaded not guilty. The verdict was as follows: “We, the jury, find the defendant guilty as charged, so say we all”, and was signed by the foreman.
A motion for a new trial was denied and the accused seeks a reversal of the judgment on writ of error. The only point discussed in the brief is that* there is a fatal variance between the allegation of ownership as to the premises entered and the proof on that point.
The allegation in the information as to the ownership of the dwelling entered places it in one Frank Heide, the proof shows it to have been the property of IT. Rich Mooney.
Heide was an employe of Mooney. His duties were to take care of the grounds and open the house occasionally for ventilation. He had a key to the house but did not live in it or on the premises. »
The Assistant Attorney General, who appears for the State, submits the case without argument because he is unable to satisfy himself that the record does not present a case of reversible error. The judgment should be reversed because of the variance between the allegation and proof as to ownership. Under the statutes denouncing burglarious entering the allegation of ownership of the building alleged to have been entered is material and must be proved as laid. See Pells v. State, 20 Fla. 774; Burns v. State, 89 Fla. 494, 104 So. R. 783; Smith v. State, 80 Fla. 315, 85 So. R. 911; Vincent v. State, 66 Fla. 197, 63 So. R. 423; Davis v. State, 51 Fla. 37, 40 So. R. 179, Potter v. State, 91 Fla. 938, 109 So. R. 91.
Reversed.
Whitfield, Terrell, Strum and Buford, J. J., concur. Brown, J., absent on account of illness.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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The City of Winter Haven v. A. M. Klemm & Son, 132 Fla. 334 (Fla. 1938)
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In the Interest of M. E., 370 So. 2d 795 (Fla. 1979)…ntrol of the store sufficient to support an allegation of ownership in him. To support a conviction of burglary, the allegation of ownership of the building entered must be proven as laid since it is a material element of the crime. Smith v. State, 96 Fla. 30, 117 So. 377 (1928). Under various circumstances, however, the ownership may be laid equally well in one person or another. Addison v. State, 95 Fla. 737, 116 So. 629 (1928). The purposes of the requirement of an allegation of ownership in a burglar…
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Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960)…property of a Latin American revolutionary movement. The law is well settled that the offense of breaking and entering involves an invasion of the possessory rights of another. Cannon v. State, 102 Fla. 928, 136 So. 695; Smith v. State, 96 Fla. 30, 117 So. 377; Presley v. State, 61 Fla. 46, 54 So. 367. It thus appears that a possessory right in the premises, which the defendant is charged with breaking and entering, was not sufficiently established. In view of the [*198] nature of this objection it is ou…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thurman H. Smith v. State, 80 Fla. 315 (Fla. 1920)
- Burnes v. State, 89 Fla. 494 (Fla. 1925)
- Davis v. State, 51 Fla. 37 (Fla. 1906)
- Potter v. State, 91 Fla. 938 (Fla. 1926)
- Pells v. State, 20 Fla. 774 (Fla. 1884)
- Vicente v. State, 66 Fla. 197 (Fla. 1913)