Mathews v. State

| Fla. | Feb 23, 1923

West, J.

Upon an indictment for petit larceny plaintiff in error was tried and found guilty as charged. To review the judgment imposing sentence writ of error was taken from this court. The ruling of the trial court denying defendant’s motion for new trial was assigned as error. The grounds of the motion only that are argued in the brief filed in this court in his behalf will be considered.

It is urged .that there was error in the order denying the motion for new trial on the ground that the verdict is contrary to the evidence. The contention is that the ownership of the property alleged to have been stolen was not proved as alleged. In Parker v. State, 75 Fla. 741, 78 South. Rep. 980, 2 A. L. R. 350, this court said “where an indictment lays the ownership of stolen property in one who is its lawful custodian and entitled to its possession, the ownership is sufficiently alleged and it is not a fatal variance if the proof shows that the legal title to the property was in some one other than the person in whose possession it was and who had the care and management of it. The property alleged to have been stolen is “ one stick of hewn timber.” It appears from the .evidence that the former owner of the stolen property is dead; that.prior to his death the timber had been acquired for ship building purposes and placed at his shipyard in the water afloat, “tied up” with a chain (from which it may be inferred that it was fastened to some stationary object) and had remained there for a long period of time; that upon his death the shipyard and timber passed into the possession and control of a son and heir who is alleged in the indictment to be the owner of the timber; that it became detached from the object to which it was fastened and floated out into the .stream, but was soon thereafter recaptured and a placard or sign placed upon it to indicate its ownership; that a. few days later it was found on the bank of the stream, in the possession of the defendant. Defendant admitted that it was found in his possession, but declared that he found it drifting in the stream between a quarter and a half mile from the shipyard, with no mark on it to indicate ownership; that he towed it to land for the purpose of making crossties; that he took it to be an “old condemned boom stick” or a “stray piece” of condemned timber and had no intent to steal it. Under the rule announced it cannot be said that the evidence of ownership of the property alleged to have been stolen was insufficient to sustain the verdict. The fact that the timber may have been found by the defendant afloat in the stream rendered it hone the less subject to larceny, nor afforded grounds for its alleged appropriation by him.

Requested instructions that were refused, which are made grounds for the motion for new trial and argued in the brief, are of two classes; first, upon the subject of the alleged bona fides and lack of intent of the defendant; and second, on the subject of cirmumstantial evidence. As 'to the former the point was covered substantially in the general charge, and as to the latter there is no basis in the evidence.

Finding no error the judgment will be affirmed.

Affirmed.

Taylor, C. J., and Whitfied and Ellis, J. J., concur. Browne, J., not participating.