Hughes v. State

97 So. 478, 86 Fla. 202

• Court: Supreme Court of Florida
• Decided: July 20, 1923
• Status: Published

Opinions

Whitfield, J.

Upon an indictment charging' the breaking and entering of a railroad depot building with intent to commit a felony, to-wit, grand larceny, the defendants were found to be “guilty.”

There is ample evidence properly admitted to prove the breaking and entering with intent to steal blank express money orders, etc., that were stolen and utilized by filling them out and collecting money on them greatly in excess of $50.00. For breaking and entering such a building with intent to commit a felony the penalty shall not exceed fifteen years in the State penitentiary. Sec. 5116, Rev. Gen. Stats. 1920. For breaking and entering to commit a misdemeanor the maximum penalty is imprisonment in the State prison not exceeding five years. Sec. 6119, Rev. Gen. Stats. 1920. The larceny of property of $50.00 value or more is a felony; while petit larceny of less than $50.00 in value is a misdemeanor. The sentence imposed is two years’ imprisonment in the State prison. Breaking and entering with intent to commit the misdemeanor of petit larceny is included with the offense of breaking and entering with intent to commit the felony of grand larceny. In this case even if the evidence does not show a breaking and entering with intent to commit grand larceny, it does show a breaking and entering with an intent to commit petit larceny; and as the verdict is “guilty,” which includes the lesser offense, and the sentence is appropriate to a verdict of guilty of breaking and entering with intent to commit the misdemeanor of petit larceny, the sentence is not repugnant to the charge or to the verdict, and conforms to the law and to the evidence adduced. See Clark v. State, 59 Fla. 9, 52 South. Rep. 518; United States v. Linnier, 125 Fed. Rep. 83; State v. Bloedow, 45 Wis. 279.

Even if technical errors of procedure were committed, they could not reasonably have been prejudicial or harmful to the defendants in view of the whole record of the trial and proceedings.

Affirmed.

Taylor, C. J., and Ellis, West and Terrell, J. J., concur. Browne, J., dissents.