F. T. KEMP, APPELLANT,
v.
STATE, APPELLEE
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F. T. Kemp was convicted of larceny of a bull after admittedly taking it openly and without concealment to service a milk cow. The Florida Supreme Court reversed, holding that where a taking is open with no subsequent concealment and the defendant provides an explanation, clear and convincing evidence of felonious intent is required to sustain conviction.
The conviction must be reversed because where a taking is open with no subsequent concealment and the defendant provides an explanation, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before conviction is authorized. The trial court erred in not granting the motion for new trial.
“One of the essential elements of larceny is an intent to feloniously deprive the owner permanntly of the property which is the subject of the lacreny, but whether such intent existed is a question of fact to be determined by the jury from all the circumstances of the case.”
Establishes that felonious intent is essential to larceny and is determined by the jury from circumstances.
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Join FLexlaw to unlock all legal intelligenceKemp was indicted for larceny of a bull belonging to J. S. Niblack. Kemp admitted taking the bull in daylight with two assistants openly and placing i…
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The appellant, F. T. Kemp, was indicted on April 25, 1939, for the larceny of a bull. He was tried April 29, 1940, and a verdict of guilty was returned. From a judgment of conviction and sentence to imprisonment in the State penitentiary, this appeal is brought.
*103The defendant below questions the sufficiency of the evidence adduced by the State to show a felonious intent on his part to steal the bull and permanently deprive the owner thereof. One of the essential elements of larceny is an intent to feloniously deprive the owner permanntly of the property which is the subject of the lacreny, but whether such intent existed is a question of fact to be determined by the jury from all the circumstances of the case. Groover v. State, 82 Fla. 427, 90 So. 473; Gustine v. State, 86 Fla. 24, 97 So. 207. The burden rests on the State to show that the property was taken animo furandi as an essential to conviction. Charles v. State, 36 Fla. 691, 18 So. 369; Flint v. State, 143 Fla. 259, 196 So. 619.
The defendant admitted having the bull in his enclosure but explained that fact by stating that he had driven the bull to his place and put him in the pen for the purpose of servicing a milk cow that had come in heat. The defendant, with the assistance of two negroes, went to get the bull in the day time, openly and without any attempt at secrecy, and placed the bull in an open pen, 150 feet from and in full view of a main highway, with no subsequent attempt at concealment. When the sheriff arrived he admitted possession of the bull and also that the bull was owned by J. S. Niblack.
It is a settled rule of law that the unexplained possession of recently stolen property may be sufficient to sustain a verdict of guilty upon a charge of larceny. McDonald v. State, 56 Fla. 74, 47 So. 485; Tucker v. State, 86 Fla. 36, 96 So. 10; Bargesser v. State, 95 Fla. 401, 116 So. 11. The reasonableness of the accused’s explanation of his possession of recently stolen goods, when he is charged with the theft of such property, is a question of fact, to be considered by the jury in connection with all other facts and circumstances submitted to them in the trial of the case. Tucker *104v. State, supra; Bargesser v. State, supra; Kilcrease v. State, 97 Fla. 264; 117 So. 862. But where the taking is open and there is no subsequent attempt to conceal the property, and no denial, but an avowal, of the taking a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. Dean v. State, 41 Fla. 21, 26 So. 638; Cooper v. State, 82 Fla. 365.
We find no errors in the conduct of the trial or in the charge of the court to the jury, but nevertheless, without further discussing the evidence, and applying the above enunciated principles to the facts as disclosed by the record in this case, we think the motion for new trial should have been granted, and that the ends of justice will best be sub-served by reversing the judgment of conviction and remanding the case, so that a new trial may be awarded. Dean v. State, supra; Flint v. State, supra.
Reversed and remanded.
Whitfield, Bufoed and Chapman, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Jalbert v. State, 95 So. 2d 589 (Fla. 1957)…tion has not been overcome by the defendant. It is also the rule in this State that the unexplained possession of recently stolen goods raises the presumption the possessor is the thief. Cone v. State, Fla. 1953, 69 So. 2d 175; Kemp v. State, 1941, 146 Fla. 101, 200 So. 368. In Cone v. State, supra, this Court said the circumstances raise the presumption when the possession is unexplained or unsatisfactorily explained. In the instant case it was within the province of the judge, sitting as the trier of fa…
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Cordell v. State, 157 Fla. 295 (Fla. 1946)…nt, by a person not entitled to the possession thereof, with the intent to deprive the owner of the property and to convert it to the use of the taker or to some person other than the owner. Brent v. State, 127 Fla. 626, 173 So. 675; Kempt v. State, 146 Fla. 101, 200 So. 368. It is essential, in order to sustain a conviction of larceny, that the evidence adduced by the State establishes beyond a reasonable doubt that the property was taken animo furandi. Helton v. State, 135 Fla. 458, 185 So. 864; Cooper v.…
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Royce Wethington v. State, 159 Fla. 670 (Fla. 1947)…count is false or otherwise there should be an acquittal. McDonald v. State, 56 Fla. 74, 74 So. 485. Unexplained possession of recently stolen property may be sufficient to sustain conviction of the possessor for the crime of larceny. Kemp v. State, 146 Fla. 101, 200 So. 368; Carnley v. State, 143 Fla. 756, 197 So. 441. Mr. Parrish, the State’s witness, placed the time of opening of the safe at between 12:00 and 12:30 on the 31st of October, 1946, and talked with the three young men and assisted them in ge…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gustine v. State, 86 Fla. 24 (Fla. 1923)
- Angus McDonald v. State, 56 Fla. 74 (Fla. 1908)
- Bargesser v. State, 95 Fla. 401 (Fla. 1928)
- Taylor v. State, 82 Fla. 427 (Fla. 1921)
- Wiley Charles v. State, 36 Fla. 691 (Fla. 1895)
- Park Tucker v. State, 86 Fla. 36 (Fla. 1923)
- Kilkrease v. State, 96 Fla. 264 (Fla. 1928)
- Groover v. State, 82 Fla. 427 (Fla. 1921)
- Cooper v. State, 82 Fla. 365 (Fla. 1921)
- Raleigh Flint v. State, 143 Fla. 259 (Fla. 1940)