Phillips v. State , 1965 Fla. App. LEXIS 3725 ( 1965 )

CARROLL, Judge.

The appellant Gary Lee Phillips was in-foirned against, charged with the crime of breaking and entering a dwelling with intent to commit a misdemeanor, to-wit, petit larceny, and charged with the petit larceny of “Cash in the amount of Fifty Dollars ($50.00), assorted tools, cigarette lighter”, the property of one A. J. Mar.

Mar reported his dwelling was broken into in the early hours of the morning of a certain date and the listed items taken therefrom. He also reported the disappearance of his automobile and his keys which included house, business and car keys. Later the same day defendant was apprehended, found in possession of an automobile fitting the description of that owned by Mar.

The defendant waived a jury, and was tried by the court and found guilty: On this appeal he contends the evidence was insufficient for conviction. The contention has merit and we reverse.

There was no evidence directly connecting the defendant with the breaking and entering or the alleged larceny. Property alleged to have been stolen from the dwelling was not found in his possession. He was not charged with having stolen the automobile.

To sustain the conviction the state contends that possession of recently stolen property, unexplained, gives rise to a presumption of its theft by the possessor, sufficient to support conviction, citing Kemp v. State, 146 Fla. 101, 200 So. 368; Cone v. State, Fla.1954, 69 So.2d 175; Jalbert v. State, Fla.1957, 95 So.2d 589. A reading of those cases discloses that the presumption relates to possession of property the theft of which is the basis for the charge. Here the defendant was not found in possession of any such property. The state argues that defendant was in possession of the stolen keys because when he was found with the missing automobile the car keys were in the ignition switch. However, as pointed out on behalf of the appellant, it was not shown that the car key or keys which were found in the ignition switch of the automobile were owned by Mar or were those which he had reported stolen from his dwelling.

Accordingly the judgment appealed from is reversed.

Reversed.