Bird v. State ( 1904 )

Hocker, J.,

(after stating the facts). — In considering the evidence in this case we can discover no substantial difference in probative effect between it and the evidence in Dean v. State, 41 Fla. 291, 26 South. Rep. 638. In both cases the animals were taken openly in the daylight under claim of ownership — in the Dean case in the presence of several witnesses — -in this case in the presence of at least one witness. In both cases they were led to the defendants home, along the public highway. In each case several witnesses swear that the animals belonged to the defendants and that they had raised them from calves. In each case the animals were sold openly, and there is not a particle of evidence to show in either case concealment or an attempt at it. In the case at bar there can be no question that the defendant owned a bull calf of about the same age as the one in dispute, of about the same color and bearing a mark so nearly resembling that of the prosecutor that an ordinary person might not readily distinguish between them. In this respect the evidence for the State in the Dean case was stronger than in the one at bar. The defendant’s bull calf, had strayed off about February and the fact that in July the calf in dispute was somewhat darker than the defendant’s calf was in February was not such a circumstance as should have necessarily advised him that it was not his own. When he took the calf he was not advised by Shuman that any one else claimed it, and the uncontradicted evidence is that he did not know that any one else claimed it. We are unable to discover in the record any testimony that the defendant took and appropriated the bull calf animo furandi. His acts as shown by the record are perfectly consistent with honest conduct, however mistaken he may have been. In Long v. State, 44 Fla. 134, text 140, 32 South. Rep. 870, this court said that the second head-note in Dean v. State, must not be understood as stating a rule of law to be given in charge to a jury in a prosecution for larceny, but a presumption of fact which the jury may apply, and which may guide the court in cases where it is applicable in determining the sufficiency of the evidence to support a verdict of guilty. This court further said that “where the taking is open in the presence of others, not amounting to a robbery, and there is no concealment, or in short where the testimony as to the taking standing alone raises a presumption of fact in favor of an innocent taking, and there is nothing in it from which a jury may legitimately infer a felonious purpose, then a verdict against the accused can not be sustained, and it would be the duty of the court to set it aside.” This doctrine is applicable to the case at bar. The evidence disclosed by the record is not sufficient to sustain a conviction for larceny. It is, therefore, considered and ordered that the judgment be reversed and a new trial awarded, at the cost of the county of Jefferson.

Taylor, C. J., and Cockrell, J., concur.

Carter, P. J., and Shackleford and Whitfield, JJ„ concur in the opinion.