LESTER PETERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lester Peters was convicted of breaking and entering a dwelling at night with intent to commit a misdemeanor under Florida law. The Florida Supreme Court reversed the conviction because the state failed to prove the essential element of stealthiness, which the prosecutrix's own testimony actually disproved.
The conviction is reversed because the state failed to prove the element of stealthiness. The prosecutrix's own testimony not only failed to prove stealthiness but actually disproved it, making conviction impossible under the applicable statute.
“So to obtain a conviction, establishment of all three factors was indispensable; failure to prove one would be fatal to the state's case.”
Establishes that all three elements of the offense were required for conviction
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Join FLexlaw to unlock all legal intelligencePeters, an acquaintance of the prosecutrix, repeatedly rang her doorbell asking to come inside and talk. When she did not answer, he walked around the…
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THOMAS, Justice.
The appellant was charged with breaking and entering a dwelling “in the nighttime * * * with intent * * * to commit a misdemeanor,” was found guilty by the jury and adjudged guilty by. the court, and was sentenced to a term of three years in state prison.
The information contained no allegation about the specific crime intended to be committed at the time of the breaking and entering. Obviously the information was framed under Section 810.07, Florida Statutes 1953, and F.S.A;, and the .trial proceeded accordingly. At the conclusion of the testimony the judge instructed the jury that the information was “drawn and prepared under Chapter 810.07” and that it was therefore necessary for the state to prove the three elements of the offense beyond a reasonable doubt; namely, (1) the breaking' and entering in the nighttime of (2) a dwelling house (3) stealthily. Under the cited law the proof of these elements would become prima facie evidence of-entering with the intent to commit some misdemeanor “in the absence of proof of intent to commit any specific crime.” Cf. Charles v. State, 36 Fla. 691, 18 So. 369, Vawter v. State, Fla., 63 So. 2d 255. So to obtain a conviction, establishment of all three factors was indispensable; failure to prove one would be fatal to the state’s case.
It was shown that the act occurred at night and that the place entered was the dwelling place of the prosecuting witness, but evidence of stealthiness was lacking. The appellant, an acquaintance of the prosecutrix, was evidently forcing his attentions upon her but it is plain from the record that his attempted conquest was more artless than stealthy. It is difficult to imagine how the appellant could have given more or more varied alarms that he proposed to go into the girl’s apartment.
We turn to her testimony for a description of his actions. He rang the door bell and when she failed to answer “he kept ringing * * * and he said he wanted to come in and talk to him [sic], to give him a chance.” In the conversation, through the closed door, he told her she had been “on his mind” and he wished to talk to her as “he was sure [they] were meant for each other.” His entreaties having failed “He walked around the house to see if he could get in.” She kept quiet hoping he would go away but he persisted in his efforts to gain an entrance and again started ringing the door bell. Getting no response, he tried both front and back doors; then he kicked out the screen of a door or window in the kitchen and went in.
Without further comment, we say that the testimony of the prosecutrix herself not only fails to prove the third element, but actually disproves it. Cf. Flohr v. Territory, 14 Okl. 477, 78 P. 565, 573; Spencer v. United States, 73 App.D.C. 98, 116 F. 2d 801, 802. This disposes of appellant’s first two questions.
We do not answer the appellant’s third question because in it he challenges the sufficiency of the information which was not attacked in the trial court. As for the other questions, they are either wanting in merit or are rendered unimportant by our conclusion that the appellant was not proved guilty as charged.
The judgment is reversed.
ROBERTS, C. J., and TERRELL, SE-BRING, HOBSON, MATHEWS, and DREW, JJ., concur.
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State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980)…the Legislature created an alternative method for establishing the element of intent to commit a crime within the structure. Of importance is the fact that it does not require [*131] proof of intent to commit a specific offense. Cf. Peters v. State, 76 So. 2d 147 (Fla.1954); Bayless v. United States, 381 F. 2d 67 (9th Cir. 1967); State v. Murie, 140 Wash. 71, 248 P. 79 (1926). Therefore, in order to comply with the “general to particular” rule of pleading and yet give force and effect to Section 810.07, we h…
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Daughtry v. State, 804 So. 2d 426 (Fla. 4th DCA 2001)…lary cases, to which defendant objected.2 The jury returned a verdict of guilty. In Vinson v. State, 575 So. 2d 1371 (Fla. 4th DCA 1991), we found it fundamental error to give the instruction without evidence of stealth, relying on Peters v. State, 76 So. 2d 147 (Fla.1954). The facts in Vinson are all but identical to the present case. In Peters, where the evidence was again indistinguishable with the present case,3 the trial court instructed the jury that the state was required to prove beyond a reasonable…
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J.A.S. v. State, 952 So. 2d 638 (Fla. 2d DCA 2007)…ed and locked screened-in porch in a condominium complex with gated security). In contrast, courts have declined to conclude the evidence showed stealthy entry where the defendant did not act in a furtive or clandestine manner. See Peters v. State, 76 So. 2d 147, 148 (Fla.1954) (reversing where defendant was “more artless than stealthy” by continuously ringing the victim’s doorbell, pleading with her that he wished to talk, and trying both front and back doors before kicking out a screen in the kitchen and…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wiley Charles v. State, 36 Fla. 691 (Fla. 1895)
- Vawter v. State, 63 So. 2d 255 (Fla. 1953)
- Spencer v. United States, 116 F.2d 801 (D.C. Cir. 1940)