Tidwell v. State , 143 Fla. 397 ( 1940 )

Writ of error to a final judgment of the Court of Record of Escambia County. Tidwell and Welch, defendants below, were informed against in the court of record in two counts, being charged in the first count with the larceny of one boat motor of the property of another of the value of $250.00, and in the second count with having feloniously bought, received and aided in the concealment of the same boat motor. The offenses charged under both counts are alleged to have been committed on the same day.

At the close of the case, after all evidence for both the State and defendants was concluded, defendants moved to require the State to elect upon which of the two counts it would stand for conviction. The denial of this motion is made the basis of the first question propounded for decision.

It is the settled rule of this State that where defendants are informed against in two inconsistent and repugnant counts and cannot be convicted under both of them, it is error to deny a motion timely and properly made to require the State to elect upon which of the two counts it will stand for conviction. Mayers v. State, 126 Fla. 640, 171 So. 824; Carlton v. State,108 Fla. 34, 145 So. 249. See also Pearce v. State, 143 Fla. 347, 196 So. 685, argued this term.

When is a motion requiring election properly and timely made? In the Pearce, Mayers and Carlton cases, supra, the motion was made after the State had closed its case in chief, and before the introduction of any evidence by defendants. This has been the criterion heretofore. To extend the time when such a motion may be made and to allow defendants to introduce testimony before requiring election would work an undue detriment to the State in the prosecution of criminal cases not sanctioned by this Court.

Defendants were found guilty under the second count and judgment was rendered on the verdict. In seeking reversal, defendants contend that there was not sufficient evidence of receiving stolen goods upon which the jury could base its verdict, and that inferences drawn by the jury from the fact of the goods being in defendants' possession are insufficient as a basis for the verdict of guilty.

Defendants admitted that they had the property in their possession, but offered an explanation of such possession. The jury are the sole judges of the reasonableness, probability, and credibility of the defendants' explanation of how they came into possession of the stolen property. See Carlton v. State,supra; McDonald v. State, 56 Fla. 74, 47 So. 485. The verdict of guilty indicates that the jury did not believe the explanation. Inferences of guilt that may have been drawn by the jury from the defendants' possession of the property are not without substantial support in the evidence.

The evidence being legally sufficient to sustain the verdict, and no reversible error appearing, the judgment of the court of record is —

Affirmed.

WHITFIELD, P. J., and CHAPMAN, J., concur.

BROWN, J., concurs specially.

TERRELL, C. J., concurs in opinion and judgment.

Justices BUFORD and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927 and Rule 21-A of the Rules of this Court.