281 So. 2d 919 | Fla. Dist. Ct. App. | 1973
Lead Opinion
Appellants, Benjamin F. Gilford and Alan E. Schaffer, appeal from a conviction after jury trial of the crime of breaking and entering with intent to commit a felony, to wit: grand larceny, in violation of Florida Statutes, Section 810.02, F.S.A.
The only significant, arguable point raised by appellants is that the trial judge committed reversible error by failing to instruct the jury upon request timely made by counsel for appellants on the lesser included offense of breaking and entering with intent to commit a misdemeanor, to wit: petit larceny.
We have made a careful review and study of the record and briefs and it very definitely appears from that examination that the proof of the guilt of each appellant is overwhelming and convincing.
One of the essential elements necessary to prove the offense charged is the value of the property at the time it was stolen. If the record disclosed that there was a question of whether the property stolen was more or less than $100 we would, of course, agree with appellants’ contention that the requested instruction of petit larceny should have been given. However, there is absolutely no evidence whatsoever before us to indicate that the value of the property stolen was less than $100. See Section 811.021(2), Florida Statutes, F.S. A.
We hold, therefore, that the appellants’ requested instruction was correctly and properly refused and that the error asserted, if any, is harmless error under Section 924.33, Florida Statutes, F.S.A.
Affirmed.
Dissenting Opinion
(dissenting).
I dissent on the authority of Brown v. State (Fla.1968), 206 So.2d 377. The requested charge was the next lower to that found by the jury, thus DeLaine v. State (Fla.1972), 262 So.2d 655, is distinguishable, oand the failure to give such charge was timely objected to and raised on appeal. I would reverse.