159 So. 2d 250 | Fla. Dist. Ct. App. | 1964
To an indictment charging that on April 1, 1961, Robert Thomas Jenner “did unlawfully take, steal and carry away, the following described personal property to-wit: Six (6) Boats * * * a better or more particular description of said personal property being to the Grand Jurors Unknown”, the defendant pleaded not guilty, was convicted of grand larceny by a jury in Taylor County, sentenced to three years imprisonment, and in due time appealed.
The facts proven were that Jenner by oral agreement made in January, 1961, became a salesman for Falcon Boats, Inc., a
Jenner transported Falcon boats from Perry, Florida, to St. Louis, Missouri where he promoted sales with signs, advertising materials and by placing boats on display in boat shows. By the end of March he had been successful in consigning or selling to dealers all of the original boats except six. He purchased a second-hand six boat transport trailer and a truck to pull it, and returned on April 1, 1961, to Perry where he picked up the last six boats, these being the ones alleged to have been stolen. Since these boats were an old model, Falcon wanted them sold to dealers and not consigned. However, the weather in the spring of 1961 was so bad boats were hard to sell, and Jenner stored them in St. Louis to get them out of the weather.
Vereen, an officer and business manager of Falcon, went to St. Louis around the first of May, at which time he conferred with Jenner about the progress of boat sales. There Vereen denied that Falcon had agreed.to giye Jenner the exclusive sales contract. Jenner then decided to see a Missouri lawyer about protecting his investment in the promotion of the boats. Vereen testified that on that visit Jenner refused to let him see the boats. Jenner testified that he did not ask to see them but wanted to know if he still had them or had sold them.
Jenner got orders for seven more boats (new models) on May 12, 1961, and talked by phone to Vereen who told him he had nine new boats completed. Vereen admitted this conversation in his original testimony, but when called back to the stand on rebuttal he denied the telephone conversation but did admit that he told him nine boats were completed. Jenner came back to Perry on May 17, 1961, to get the new model boats to fill his orders and found that only one boat was finished. He became angry with Vereen and refused to talk to him but discussed the boat business with one of the officers who was to replace Vereen as business manager. Jenner was then arrested on charges of embezzlement. While in jail Jenner was told that if he would reveal the whereabouts of the six boats, the criminal charges would be dropped but Jenner maintained that in. order to protect his-claims against Falcon for the funds they owed him, he would not tell them. He did have Mr. Burton, Falcon’s lawyer, call his St. Louis lawyer to assure Falcon Boats, Inc. that the boats were stored in St. Louis,
The salient point involved on this appeal' is venue. Although the indictment did not allege venue, defendant did not move to quash. The trial court gave the essential
The indictment was framed under Section 811.021 which provides: “A person who, with intent to deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker * * *. Having in his possession * * * as * * * employee * * * goods and chattels * * * appropriates the same to his own use, or that of any other person * * * ” is guilty of larceny. Therefore, intent to deprive or defraud the true owner or to appropriate the property to the use of the taker or another is a specified element of the crime fundamental in determining venue.
In this cause the defendant lawfully-obtained possession of the boats in Taylor County, Florida, and transported them to St. Louis with the owner’s consent, for the purpose of selling same. There is no evidence that' defendant did not have the authority to store the boats or otherwise protect the property of his employer from the-elements.
The only evidence, and that being controverted, is that the defendant first “secreted” the boats when he refused to show them to Vereen in St. Louis in May. If
This case is analogous to Davis v. State,
Accordingly, the judgment and sentence of the lower court are reversed with directions to discharge the appellant from the cause.
. Bowman v. State, 114 Fla. 29, 152 So. 739 (1934); 9 Fla.Jur., Criminal Law, § 101 and eases cited therein.
. Powell v. State, 132 Fla. 659, 181 So. 901 (1938).
. F.S. Section 811.021, F.S.A., and 9 Fla. Jur., Criminal Law, § 100.
. Cf. Davis v. State, 96 So.2d 667 (Fla.App.3d, 1957).
. Simpson v. State, 81 Fla. 292, 87 So. 920, 921 (1921).
. Cf. Fitch v. State, 135 Fla. 361, 185 So. 435, 125 A.L.R. 360 (1938) where a nightwatchman with custody of the store, took money from the cash drawer, but was not authorized to do so for any purpose except perhaps to protect it for his employer.
. Cf. Nunamaker v. State, 116 So.2d 450 (Fla.App.2d, 1959) where the evidence consisted of 1. a letter terminating defendant’s agency, thereby putting him under a duty to return his principal’s-money and 2. an admission made by defendant to a prosecuting witness that he-had spent the money.
. See Bates v. State, 102 So.2d 826 (Fla.App.2d 1958) where it was held that the-offense under § 811.021(b) took place when and where defendant-bailee sold, the property and accepted payment therefor.
. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923).
. Davis v. State, supra. See also Powell v. State, supra.