WAYNE HENRY LAMBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lambert was convicted of grand larceny for stealing a safe, but the appellate court reversed because the State failed to prove the stolen property had a value of $50 or more as required by law at that time. The court reduced the conviction to petty larceny, which was necessarily included in the information and supported by the evidence.
The conviction for grand larceny must be reversed because the State failed to prove the property's market value at the time of theft was $50 or more. The court reduced the conviction to petty larceny, a lesser offense necessarily included in the information. The procedural corrections to the owner's name caused no deprivation of the defendant's rights.
“For reasons that are obvious, testimony as to the cost of stolen property is insufficient in itself to establish the value at the time of theft.”
Establishes the legal principle that original purchase price is not dispositive of value for larceny purposes.
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Join FLexlaw to unlock all legal intelligenceLambert stole a safe from J. W. Frye, Jr. The only testimony regarding the safe's value came from the owner, who testified he paid about $300 for it e…
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Appellant seeks reversal of a conviction of grand larceny on the ground, inter alia, that the State failed to establish that the stolen property had a value of $50 or more, which was the criterion then governing grand larceny. Sec. 811.01, Florida Statutes 1955, F.S.A.1
The only testimony as to value of the stolen property, a safe, was given by the owner, J. W. Frye, Jr., viz.:
“Q. The piece of equipment, what would be the value of it? What did you pay for it? A. Well, I paid about three hundred dollars for it but we charge off so much a year.
“Q. How long have you had it? A. I have had the safe about, let’s see, at that time I would say eight years.
“Q. And you paid three hundred dollars for it eight years ago? A. And we charge it off in ten years or twenty, I forget now which it is. The safe itself wasn’t too valuable.
“Q. But you had about thirty-three hundred dollars cash in it? A. That is right.”
For reasons that are obvious, testimony as to the cost of stolen property is insufficient in itself to establish the value at the time of theft. The method employed by the owner in charging “off so much a year” against whatever the cost of the property was to him, which was evidently for income tax or bookkkeeping purposes, is immaterial and irrelevant. The *70criterion in prosecutions for larceny is the market value of the property at the time of the theft. Johnson v. State, Fla.App., 102 So.2d 412; Hicks v. State, 127 Fla. 669, 173 So. 815. It was the burden of the State to establish such value to be $50 or more, and that burden was not met.
In order to permit correction of the information by adding the suffix “Jr.” after the name J. W. Frye (owner of the property) the court in effect declared two mistrials. While such correction might have been accomplished at any time during the trial under the authority of Section 906.08(5), Florida Statutes, F.S.A., without necessity for declaring a mistrial, defendant suffered no deprivation of his rights by the procedure followed.
Section 906.08(5), Florida Statutes, F.S.A., provides:
“If in the course of the trial the true name of any person, group or association of persons, or corporation, described otherwise than by the true name, is disclosed by the evidence, the court shall cause the true name to be inserted in the indictment, information, bill of particulars and record wherever the name appears otherwise.”
The test for determining its availability is found in Alvarez v. State, 157 Fla. 254, 25 So.2d 661. If in the course of trial the name as alleged is found not to be the true name, in the sense that some other was intended, then the defect is substantial and the pleading must be amended, and as amended must be signed and sworn to by the authorized prosecuting official and then refiled, whereupon the defendant must again be arraigned, a jury selected, and the trial proceed anew. See also: Sipos v. State, Fla., 90 So.2d 113; Fekany v. State, 111 Fla. 598, 149 So. 590. If, however, the true name of the alleged owner simply has not been accurately stated, the error is curable by amendment under the statute. Alvarez v. State, supra.
The suffix “Jr.” or “Sr.” is ordinarily considered descriptio personae and not part of a person’s legal name. Omission thereof in civil or criminal proceedings is usually considered harmless error. Dunaway v. Lindsley-Feiber Motor Co., La.App., 73 So.2d 505; Teague v. State, 144 Ala. 42, 40 So. 312; 65 C.J.S. Names § 5 (b).
Because of the failure of proof in respect to establishing a value necessary to constitute grand larceny, the conviction for that offense is erroneous. The proofs, however, do establish the guilt of the defendant of petty larceny, which is a lesser degree or offense necessarily included in the information. Pursuant, therefore, to Section 924.34, Florida Statutes, F.S.A., the judgment of the trial court is reversed with directions to enter judgment of conviction for petty larceny and to pass sentence accordingly.
WIGGINTON, J., and THORNAL, Associate Judge, concur.
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Gamble v. State, 210 So. 2d 238 (Fla. 2d DCA 1968)…Florida that a necessary element of proof to establish a charge such as in the instant case is the taking of property valued at $100 or more at the time of the theft. Todd v. State, Fla.App.1966, 187 So. 2d 908, 909; Lambert v. State, Fla.App.1959, 111 So. 2d 68, 69. At the trial of the defendant herein, an invoice was introduced into evidence which recited that the original cost of one of the televisions was $152.95. It is a matter of record that the televisions which were stolen from the store were rente…
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Verdalen C. Spencer v. State, 217 So. 2d 331 (Fla. 4th DCA 1968)…riminal Law and Procedure, § 449. For the purpose of classifying the larceny as grand or petty, the value to be used is normally market value at the time of the theft. Hicks v. State, 1937, 127 Fla. 669, 173 So. 815; Lambert v. State, Fla.App.1959, 111 So. 2d 68; Suarez v. State, Fla.App.1962, 136 So. 2d 367, 369; Escobar v. State, Fla.App.1965, 181 So. 2d 193, 17 A.L.R.3d 1390; Moore v. State, Fla.App.1966, 183 So. 2d 563; and Todd v. State, Fla.App.1966, 187 So. 2d 908. The new cost of the stolen chattel…
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Moore v. State, 183 So. 2d 563 (Fla. 4th DCA 1966)…missing copper wire had some value. The proof was adequate to sustain the guilt of defendant of petit larceny, an offense of a lesser degree included within the charge. Bornstein v. State, Florida 1951, 54 So. 2d 519; Lambert v. State, Fla.App.1959, 111 So. 2d 68; Suarez v. State, Fla.App.1962, 136 So. 2d 367. In conformity to section 924.34, Florida Statutes, F.S.A., we hereby reverse the judgment and sentence of the trial court with direction to enter judgment of conviction for petit larceny and to impose…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alvaro Alvarez v. State, 157 Fla. 254 (Fla. 1946)
- United States Fid. & Guar. Co. v. ADA A. Tressler, 157 Fla. 254 (Fla. 1946)
- Hicks v. State, 127 Fla. 669 (Fla. 1937)
- Fekany v. State, 111 Fla. 598 (Fla. 1933)
- Vlock v. White, 90 So. 2d 113 (Fla. 1956)
- Johnson v. State, 102 So. 2d 412 (Fla. 2d DCA 1958)
- Lambert v. State, 105 So. 2d 612 (Fla. 1st DCA 1958)