Tirko v. State

Mar 1, 1962
61-378
Reporters:
Before:
Horton, Carroll, Hendry (per curiam)

Charles A. Gould, Jr., Miami, for appellant.

Richard W. Ervin, Atty. Gen., ‍‌​​‌​‌​‌​​‌​‌‌​‌‌​​‌​​​‌​​​​​​‌​‌​​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌‌​​​​​​‌​‌‍and Herbert P. Benn, Asst. Atty. Gen., for appellee.

Before HORTON, CARROLL and HENDRY, JJ.

PER CURIAM.

Appellant was informed against for breaking and entering with intent to commit grand larceny (§ 810.02, Fla. Stat., F.S.A.) and grand larceny (§ 811.021). On trial without a jury he was found guilty. Judgment and sentence followed, and he appealed. His two contentions have been considered and found to be without merit. The finger print evidence sufficiently met the requirement that where ‍‌​​‌​‌​‌​​‌​‌‌​‌‌​​‌​​​‌​​​​​​‌​‌​​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌‌​​​​​​‌​‌‍it is relied on to establish identity, the circumstances must be such that the print could have been made only at the time the crime was committed. See Annot. 28 A.L.R.2d 1115, 1150-1155; 3 Wharton‘s Criminal Evidence, § 982 (12th ed. 1955). The court could have so found on the evidence presented. Undisputed evidence that the amount of money taken was $170 met the need to show a taking of more than $100 under the ‍‌​​‌​‌​‌​​‌​‌‌​‌‌​​‌​​​‌​​​​​​‌​‌​​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌‌​​​​​​‌​‌‍information.1 Lang v. State, 42 Fla. 595, 28 So. 856; 32 Am. Jur., Larceny, § 139.

Affirmed.

On Petition for Rehearing.

The petition calls attention to the reference in our opinion to the trial as having taken place before a jury, whereas the defendant was tried before the court without a jury. The opinion has been corrected accordingly. The petition for rehearing is denied.

Notes

1
The information charging grand larceny included the following: “* * * did then and there ‍‌​​‌​‌​‌​​‌​‌‌​‌‌​​‌​​​‌​​​​​​‌​‌​​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌‌​​​​​​‌​‌‍unlawfully and feloniously take, steal, and carry away the money, goods and chattels of John H. Long, doing business as Long‘s B.S.A. Motor Sales, to-wit: Cash in the sum of Three Hundred Fifty Dollars ($350.00), good and lawful money of the United States of America, a further and more particular description of said money, goods and chattels being to the State Attorney unknown, being then and there of the value of More than One ‍‌​​‌​‌​‌​​‌​‌‌​‌‌​​‌​​​‌​​​​​​‌​‌​​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌‌​​​​​​‌​‌‍Hundred ($100.00) Dollars, good and lawful money of the United States of America, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”