Rimes v. State , 36 Fla. 90 ( 1895 )

Taylor, J.:

The plaintiff in error was indicted, tried and convicted at the Spring term, 1894, of the Circuit Court for Columbia county, of the crime of breaking and entering a building in the night time with intent to commit the felony of larceny of goods exceeding one hundred dollars in value, and was sentenced to three years’ confinement in the State penitentiary, and seeks a reversal of this judgment and sentence by writ of error •to this court.

The errors assigned are: 1st. That the court erred in requiring a plea of the defendant, upon the indictment. 2d. The court erred in passing sentence and ■entering judgment of guilty upon the indictment and record. 3d. The court erred in overruling the defend.ant’s motion for a new trial.

To sustain the first and second of these assignments it is contended that as the indictment is predicated upon section 2435 of the Revised Statutes, that provides as follows: “Whoever breaks and enters any other building or any ship or vessel either in the day time, with intent to commit a felony, or after having ■entered with such intent, breaks such other building, ship or vessel, shall be punished,” etc.,, that it should have expressly alleged that the building it charges to have been broken and entered was not a dwelling house or any other of the buildings mentioned in section 2434 of the Revised Statutes, immediately perceding the section under which the indictment was found, for dhe criminal breaking and entry' of which a severer .penalty is prescribed. There is no merit in' this contention. The indictment charges in express terms that the budding entered was a “store house.” This sufficiently identifies the building as not being a dwelling house. If at the trial the State had undertaken under this indictment to introduce proof to make out a case of the burglary of the dwelling house, the proof would have been clearly inadmissible, because the “dwelling house” feature necessary to the crime provided for under section 2434 of the statute is entirely absent from the indictment. If the State wishes to charge the accused under the provisions of section 2434, then the indictment should by apt words describe or identify the building broken and entered as being one of the particular character mentioned in that section, but when the building does not belong to that particular class, it .is sufficient to describe it, under section 2435, in the indictment, by any apt words of description showing that it is a “building,” such, for example, as “store house,” “office,” “shop,” and the like. The indictment here charges the offense substantially in the language of the statute, and we think it is sufficient.

It is contended under the third assignment of error that the court erred in overruling the defendant’s motion for a new trial. The motion for new trial was upon the ground that the verdict was not supported by the -evidence, and was contrary to law. The evidence, we think, abundantly sustains and justifies the verdict found. It shows, without conflict, that the store house as alleged was broken open and entered in the night time, as alleged, and goods of over one hundred dollars in value stolen therefrom, a large part of which goods were within fifty-five days thereafter found in the possession of the defendant, and in the possession of several other persons to whom he had sold them at greatly reduced prices, with no prompt attempt upon his part to account for his possession thereof when such possession was iirst discovered, but, on the contrary, there were suspicious circumstances shown tending to prove a guilty concealment of his possession thereof. Leslie vs. State, 35 Fla. 171, 17 So. Rep. 555; Tilly vs. State, 21 Fla. 242. As this court has heretofore held in repeated cases, the guilt of the accused does not follow as a presumption of law from the unexplained possession of goods recently stolen, but the presumption of guilt in such a case is one that the jury can infer as a matter of fact, of which they are the sole judges, tobe considered in connection with all the other circumstances in each particular case. The jury have passed upon the facts here, and we see nothing in the record to disturb their finding. The judgment is, therefore, affirmed.