Opinion
No. 71-448.
August 7, 1972.
Appeal from the Criminal Court of Record, Palm Beach County, Russell H. McIntosh, J.
Walter N. Colbath, Jr., Public Defender, and Michael T. Mallon, Sp. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., and William W. Herring, Asst. Atty. Gen., Tallahassee, for appellee.
We have carefully considered each of the appellant's seven points on appeal and conclude that none demonstrates reversible error. In his reply brief, the appellant advises this court that his fifth point presents a question of first impression, to-wit, whether a wife as a matter of law can be guilty of larceny of her husband's separate property. We answer the question in the affirmative on the rationale explicated in State v. Herndon, 1946, 158 Fla. 115, 27 So.2d 833. We also conclude that the trial judge's instruction on this question was adequate.
The judgment and sentence appealed from are affirmed.
Affirmed.
MAGER, J., concurs.
WALDEN, J., dissents in part, concurs in part.
The jury selection procedure here was grossly confused. Appellant's counsel was justifiably baffled and boxed in by the trial court rulings concerning same. It is clear from the record that appellant — either through a failure of communication or because of some unwritten and unknown ground rules that locally obtain — was in fact and law prevented from making a reasonable examination of the prospective jurors and deprived of a fair opportunity to exercise his challenges. I would reverse upon authority of Barker v. Randolph, Fla. App. 1970, 239 So.2d 110.
As to the remaining points, I concur with the majority decision that none merit reversal.
Dissent in part; concur in part.