FRANK SPIKE PATTERSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the state's failure to prove the automobile was propelled by gasoline or kerosene, as required by statute, was a fatal defect in the prosecution for larceny.
The defendant was convicted of larceny of an automobile. The information charged the larceny of a specific vehicle, described as propelled by gasoline…
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This appeal from a larceny conviction is predicated on the contention of the defendant-appellant that an essential element of proof was omitted. The contention has merit, and we reverse.
An information charged that the defendant “did then and there unlawfully and felo-niously take, steal, and carry away one certain automobile which is propelled by gasoline or kerosene, to-wit: 1957 Chevrolet * * * the property of one Miramar Motors, Inc.” The charge was laid under § 811.20, Fla.Stat., F.S.A., reading as follows:
“The larceny of any automobile, loco-mobile, motorcycle, or other like vehicle propelled by electricity, gasoline or kerosene in this state, shall be deemed a felony; and any person convicted thereof shall be punished by imprisonment in the state prison for a term not *767exceeding five years, or by fine not exceeding five thousand dollars.”
The information described the vehicle in the language of the statute as being an automobile propelled by gasoline or kerosene. But on the trial, proof thereof was lacking. Failure of the state to present evidence to establish that necessary allegation that the automobile was one propelled by gasoline or kerosene (Lasher v. State, 80 Fla. 712, 86 So. 689, 690) was a defect fatal to the prosecution.1 See Lasher v. State, supra; Farrior v. State, Fla.1954, 76 So.2d 148, 151; Johnson v. State, Fla.App.1958, 102 So.2d 412; on the authority of which we conclude the judgment appealed from should be and it hereby is reversed.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Stewart v. State, 187 So. 2d 358 (Fla. 1st DCA 1966)…failure to prove that the motor vehicle was propelled by gasoline was fatal.” In support of its position on this point the petitioner chiefly relies upon the decision of the District Court of Appeal, Third District of Florida, in Patterson v. State, 167 So. 2d 766 (1964), in which our sister court held that in a prosecution under Section 811.20 it was necessary for the prosecution to allege and prove that the automobile in question was propelled by gasoline or kerosene. We agree with that holding as applicabl…
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Odom v. State, 175 So. 2d 202 (Fla. 3d DCA 1965)…ed thereon. The first point raised urges that the trial judge should have directed a verdict for the defendant because the evidence failed to prove that the automobile was propelled by electricity, gas or kerosene. Patterson v. State, Fla.App.1964, 167 So. 2d 766. We find this point to be without merit because the record contains evidence which supports the finding of the trier of fact that the automobile was in fact one propelled by gasoline. Not only is the make of the automobile given but there is in the…
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State v. Patterson, 173 So. 2d 145 (Fla. 1965)…Certiorari withdrawn by petitioner. 167 So. 2d 766.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lasher v. State, 80 Fla. 712 (Fla. 1920)
- Farrior v. State, 76 So. 2d 148 (Fla. 1954)
- Johnson v. State, 102 So. 2d 412 (Fla. 2d DCA 1958)
- Blair v. State, 161 So. 2d 233 (Fla. 3d DCA 1964)
- Valla E. Walker v. Citizens Bank & Tr. Co. IN Sarasota, 161 So. 2d 233 (Fla. 2d DCA 1964)