Vander Shiver v. State

138 So. 502, 103 Fla. 871, 1931 Fla. LEXIS 1410

• Court: Supreme Court of Florida
• Decided: December 11, 1931
• Status: Published

Opinion

Buford, C.J.

This case comes on writ of error to the Circuit Court of Calhoun County wherein the plaintiff in error was convicted of the larceny of a cow.

The assignment of error attack the sufficiency of the evidence to sustain the verdict and judgment. The principal contention is that the ownership of the property in Suggs as laid in the indictment was not proven.

This- Court has repeatedly held that where an indictment lays the ownership of stolen property in a particular person and it is shown that the particular person was in the lawful custody of the property and entitled to its possession, there is no material variance between the allegations and proof. See Parker vs. State, 75 Fla. 541, 78 Sou. 980; Mathews vs. State, 85 Fla. 194, 95 Sou. 609, and cases there cited.

It appears that the defendant attempted to defend on the trial upon the theory that Suggs, the alleged owner, had given him, defendant, permission to sell and dispose of the cow in question and he testified to such a state of facts. Suggs denied the existence of any such facts. The jury evidently believed Suggs and resolved that a conflict in the testimony against the defendant, in which action the jury was within its proper evidence.

No reversible error appearing in the record, the judgment should be affirmed and it is so ordered.

Affirmed.

Ellis and Brown, J.J., concur.

Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.