McMullen v. State

81 So. 223, 77 Fla. 217

Opinions

Whitfield, J.

— At the trial of plaintiff in error for larceny of hogs, the court excluded, on the ground that it was irrelevant and immaterial, the record in an action of replevin the prosecuting witness had brought to recover the hogs from the defendant, in which action the possession of the Logs was awarded to the defendant. If the defendant was entitled to the hogs,, or if they did not belong to the prosecuting witness as alleged, the defendant could not legally have been convicted on the charge, therefore, the record referred to was both relevant and material to the issue being tried and should have been admitted as against the objections made to it. See Charles v. State, 36 Fla. 691.

Reversed.

Browne, C. J., and Taylor, J., concur. Ellis and West, JJ., dissent.