Opinion
May 30, 1952.
Appeal from the Circuit Court, Pinellas County, John U. Bird, J.
Wm. C. Pierce, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Boone D. Tillett, Jr., Asst. Attys. Gen., for appellee.
The appellant brought this appeal from a judgment adjudicating him guilty of breaking and entering with intent to commit grand larceny and sentencing him to serve five years in the state penitentiary.
He first complains of the court's denial of a motion for bill of particulars "Specifying the `Equipment, Merchandise, Materials or Other Items' Constituting the Subject-Matter of the Alleged Grand Larceny * * *." In this motion it was charged that the information was so vague and indefinite, and was represented that the defendant was so ignorant of the facts the state would undertake to prove, that the specifications we have quoted were vital to the movant's defense.
The information was in the usual form. True, the property intended to be taken at the time of the entry was not described; but there was no need for such an allegation as the elements of the offense are the breaking, the entering, and the intent to steal, and the crime is accomplished if these be proved, whether any property was actually stolen or not. So, technically, there were no goods "Constituting the Subject-Matter of [an] Alleged Grand Larceny, * * *" the evidence of property originally in the place entered and subsequently found in the possession of the defendant being relevant only to establish the elements of breaking, entering, and intent, not actual larceny.
The information was not vague and uncertain and, as the testimony clearly shows, the defendant was not so ignorant of the salient facts that denial of his motion resulted in a miscarriage of justice.
It was definitely established that the building in question had been entered by breaking the glass in a rear door so the lock could be reached, and subsequently a quantity of property, identified as having been in the building before the burglary, was located in the defendant's home. Such developments in the testimony, which appellant in his brief acknowledges may be used to test the merits of a motion for bill of particulars made on the eve of the trial, Suarez v. State of Florida, 95 Fla. 42, 115 So. 519, manifest a lack of ignorance on defendant's part of the property relied upon as evidence of the breaking.
The appellant insists that there was a discrepancy between the descriptions of some upholstery material said to have been in the building and later discovered in his own house. The question, he concedes, is purely factual. This contention seems to proceed upon the difficulty of identifying the material because of its common design, but the testimony of the state's witnesses upon the point seems harmonious and consistent, especially as one of the partners who owned the place of business entered testified unequivocally that he made an inventory of the goods stolen; that he later examined the property seized from defendant; and that he definitely recognized them as the same. Such testimony was ample identification.
We now come to the account given by the defendant of his possession, and its sufficiency to raise a reasonable doubt of his guilty participation in the criminal transaction. The familiar rule relating to the efficacy of such an explanation is found in Glisson v. State, 85 Fla. 493, 96 So. 840. Let us now see if the testimony the jury chose to believe indicated that defendant's statement about the goods he possessed was credible, or sufficient to raise a reasonable doubt of his culpability, thus obligating the state to prove it untrue.
In brief, he said "two guys" drove to the shop where he built truck bodies and asked him to do some work for them. He named a price of $300 and accepted one-third in cash and "some stuff" they had with them, which was delivered to his home while he was away attending a show with his family. He put the property in his attic where the officers later found it.
When the officers called, they told the defendant they had information that stolen goods were concealed in his house, and, according to their story, he replied that "he didn't have anything and [they] were welcome to search his house if [they] wanted, there was nothing in the house and nothing to be afraid of at all." The main part of the dwelling was searched and nothing was found; then a small door was noticed opening into the garret from a toilet. Upon entering through it the stolen goods were found. Evidently, there were two doors to the attic, this one and one in the living room, and "the attic was sort of separated." When the cache was at last located, the defendant said, according to a witness for the state: "`Yes, sir, I guess you got me, that's it.'"
The appellant attempted to explain his possession, commencing with the questionable delivery by "two guys" during his absence. The jury was justified in concluding that the explanation was not so reasonable or credible as to raise a reasonable doubt of his culpability. His invitation to search and the inconsistency of his remarks at the time with his comment when the hidden property was eventually located in a compartment of the garret accessible through a relatively obscure trapdoor in a toilet, coupled with the manner in which he came into possession, pointed unerringly, we think, to his guilt. Rimes v. State, 36 Fla. 90, 18 So. 114.
The final question is based on the action of the judge in allowing the introduction of evidence of what the appellant calls "Other Offenses" and possession of "Other Separate and Distinct Recently Stolen Goods." The appellant feels that the state having "planted itself on the proposition that only the upholstery material was the subject-matter of the larceny from the building" should not have been permitted to inquire of witnesses about other property taken and concealed. We repeat that no charge of larceny was involved, but only the intent to commit it at the time of the breaking. The rule with reference to the admissibility of evidence of other disconnected offenses has, therefore, no application, and so far as different items or kinds of property are concerned, there seems to have been no reason to include one and exclude the others. To repeat, evidence of property, whatever its nature, left in the building broken and found in defendant's attic was relevant to establish the intent with which the breaking was done. The admission of evidence about property found in the same cache but not taken during the same breaking, would not constitute reversible error. Appellant himself linked the various properties when he undertook to explain his possession.
Our careful study of appellant's questions leads only to a negative answer to each of them.
The judgment is
Affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.