J. T. K., A JUVENILE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile was charged under Florida's missile-throwing statute for allegedly throwing railroad ballast at unoccupied boxcars. The appellate court reversed the trial court's finding of delinquency, holding that the evidence failed to prove the statutory elements requiring proof of conduct likely to produce death or great bodily harm.
The evidence was insufficient to sustain the delinquency finding because the statute requires proof that the missile or stone would produce death or great bodily harm, and the evidence showed only small railroad ballast thrown at unoccupied cars with no damage proven. The trial court erred in not granting the motion for judgment of acquittal.
[1] A conviction under Florida Statute § 790.19 requires proof that the missile thrown was capable of producing death or great bodily harm.
[2] Evidence of throwing rocks at unoccupied railroad cars, without proof of damage or that the rocks were capable of producing death or great bodily harm, is insufficient to…
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Join FLexlaw to unlock all legal intelligence“the evidence wholly failed to prove the felonious conduct proscribed by the statute”
Establishes that the evidence was insufficient to satisfy the statutory requirements for the crime charged.
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Join FLexlaw to unlock all legal intelligenceA Southern Railroad policeman testified that he observed three boys, including the appellant, throwing rocks and railroad ballast (approximately 1.5 i…
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RAWLS, Acting Chief Judge.
Pursuant to the detention of appellant by a Southern Railroad policeman, the sovereign State of Florida charged appellant as follows:
“that . . . is a delinquent child because: On the 19th day of January, 1976, the said child did then and there wantonly and maliciously throw a missile, to-wit: stones, at railroad cars of the SEABOARD COAST LINE RAILROAD CO. contrary to Section 790.19, Florida Statutes.”
Section 790.19, Florida Statutes, provides as follows:
“Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.-084.”
By this appeal, appellant challenges the trial court’s finding that the allegations of the petition were sustained by evidence and testimony.1 We agree and reverse.
A Southern Railroad policeman was the sole witness to the nefarious acts for which appellant was accused. The railroad policeman testified that he was approximately 100 yards away when he saw three boys, one of whom was appellant, throwing “rocks, ballast”, “just your usual railroad ballast, about an inch and a half in diameter”, at passing, unoccupied railroad boxcars. No damage to the boxcars was proven. In short, the evidence wholly failed to prove the felonious conduct proscribed by the statute. The trial judge erred in not granting appellant’s motion for judgment of acquittal.
Reversed with directions that appellant be discharged from the order placing him on probation.
MILLS and SMITH, JJ., concur. . The trial court withheld adjudication and placed appellant on probation under the supervision of a youth counselor of the Youth Services Program.
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E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989)…. Gutierrez saw E.J. make a throwing motion, she did not see the object thrown. Thus, we may not conclude that the item thrown was a rock, and accordingly, we reverse E.J.’s adjudication of delinquency for throwing a deadly missile. J.T.K. v. State, 341 So. 2d 229 (Fla. 1st DCA 1976) (evidence insufficient to support conviction for throwing a deadly missile when sole witness could not identify object thrown); D.B.C. v. State, 341 So. 2d 230 (Fla. 1st DCA 1976) (same). We find no evidence to support EJ.’s adj…1 / 2
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Carter v. State, 469 So. 2d 775 (Fla. 1st DCA 1984)…DCA 1976), states that the evidence produced, from a sole witness who stood 250 to 300 yards away that defendant threw " ‘something’ in the direction of the train but [witness] did not see what they were throwing” was insufficient. J.T.K. v. State, 341 So. 2d 229 (Fla. 1st DCA 1976), holds that evidence from a witness standing 100 yards away that defendant threw rocks or ballasts at an unoccupied railroad boxcar with no damage to the boxcars was insufficient to prove felonious conduct.…
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D. B. C. v. State, 341 So. 2d 230 (Fla. 1st DCA 1976)…cars of the SEABOARD COAST LINE RAILROAD CO., contrary to Section 790.19, Florida Statutes.” The factual circumstances involved in this delinquency proceeding are quite similar to those recited in J. T. K. v. State, First District Court of Appeal, 341 So. 2d 229, opinion filed December 23,1976, although in the instant case the sole witness to the alleged incident, a Southern Railroad policeman, testified that while approximately 250 to 300 yards away, he saw three boys, one of whom was appellant, throwing “…
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