JUNIOR KIRKLAND, HORACE WARD, GEORGE MARTIN, ET AL.,
v.
STATE
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This case involves a conviction for breaking and entering a storehouse with intent to commit petit larceny. The appellate court found that the evidence only supported a charge of petit larceny, not the more serious offense of breaking and entering.
The court held that the actions described did not constitute breaking and entering a storehouse. The most that could have been warranted under the facts was a charge and conviction of petit larceny.
“The most that could have been warranted under the facts would have been a charge and conviction of petit larceny.”
Establishes the court's conclusion regarding the appropriate charge based on the evidence.
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Join FLexlaw to unlock all legal intelligenceThe defendants were charged with unlawfully breaking and entering a large gasoline storage tank owned by American Oil Company with the intent to commi…
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Plaintiffs in error were convicted under an information charging that,
“Junior Kirkland, Horace Ward, George Martin, R. L. Mason, Jessie Wise, and On'nie Mae Wise, did unlawfully *74break and enter a storehouse of another, to-wit: the store house of American Oil Company, a corporation, wherein gasoline was then and there stored consisting of a large tank permanently placed on steel and concrete foundations, said tank having a length of approximately 30 feet and a diameter of approximately ten feet and a capacity of approximately 17,750 gallons, with intent then and there to commit a misdemeanor, to-wit: petit larceny.
“Second Count
“And your informant aforesaid, upon his oath aforesaid, prosecuting as aforesaid, further information makes that on January 31, 1939, at and in Walton County, Florida, Junior Kirkland, Horace Ward, George Martin, R. L. Mason, Jessie Wise and Onnie Mae Wise did unlawfully break and enter a building of another, to-wit: a building of American Oil Company, a corporation, wherein gasoline was then and there stored, said building consisting of a 'large tank permanently placed on steel and concrete foundations, said tank having a length of approximately 30 feet and a diameter of approximately ten feet and a capacity of approximately 17,750 gallons, with intent then and there to commit a.misdemeanor, to-wit: petit larceny.”
The information was evidently intended to charge the offense denounced by Section 5119 R. G. S., 7220 C. G. L.
The evidence showed that the offense, if any, was committed by drawing a few gallons out of a storage tank. The same offense would have been committed if the gasoline had been so drawn out of an automobile tank.
The most that could have been warranted under the facts would have been a charge and conviction of petit larceny.
The judgment is reversed.
So ordered.
*75Terrell, C. J., and Thomas, J., concur.
Whitfield, P. J., concurs in opinion and judgment.
Justices Brown and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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Drew v. State, 773 So. 2d 46 (Fla. 2000)…. The reason why you are here today is to decide whether or not he is guilty of burglary and possession of burglary tools. . The Jones court certified conflict with Word, and Jones is currently before this Court for review. . In Kirkland v. State, 142 Fla. 73, 194 So. 624 (1940), a case predating the current burglary statute, this Court stated in dicta that draining a few gallons of gas out of a storage tank was the equivalent of drawing gas out of an automobile gas tank, and as such, the conduct could o…
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R. E. S. v. State, 396 So. 2d 1219 (Fla. 1st DCA 1981)…ments, trunks, etc. Cf. State v. Hankins, 376 So. 2d 285 (Fla. 5th DCA 1979) (where the court affirmed the trial court’s dismissal of burglary charge against a defendant who had stolen automobile hubcaps.) A more analogous case is Kirkland v. State, 142 Fla. 73,194 So. 624, 625 (1940), where the Florida Supreme Court reversed a burglary conviction for siphoning gasoline out of a large gasoline storage tank. The court stated that The evidence showed that the offense, if any, was committed by drawing a few…
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Hill v. State, 302 So. 2d 785 (Fla. 4th DCA 1974)…an indictment for breaking and entering a storehouse, the court defined a storehouse as a building for keeping goods of any kind, especially provisions; a magazine; a repository; a warehouse. Some years later our Supreme Court in Kirkland v. State, 142 Fla. 73, 194 So. 624 (1940), held that an above the ground gasoline storage tank is not a storehouse within the contemplation of § 7220 C.G.L. (the predecessor of § 810.05, F.S.1973), and hence one may not be guilty of breaking and entering such a storage t…
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