Grooms v. State , 85 Fla. 413 ( 1923 )

Whitfield, J.

The plaintiff in error and two others were indicted for the larceny of an automobile. A former conviction was reversed because an erroneous charge was given that related to the burden of proof and may reasonably have, been harmful. Grooms v. State, 83 Fla. 547, 92 South. Rep. 153.

This writ of error was taken to a subsequent conviction, after a severance of the'defendants was had.

There is ample evidence that the automobile was taken without the consent of the owner, and that the plaintiff in error was one of the three who left the neighborhood at night and rode in the car to Georgia, where they were arrested. The defendant’s testimony that he had no part in taking the car, but merely joined the others upon their invitation, apparently did not impress the jury as being reasonable and creditable under alb the circumstances shown in evidence. McDonald v. State, 56 Fla. 74, 47 South. Rep. 485; Groover v. State, 82 Fla. 427, 90 South. Rep. 473. The facts here are not like those in Sykes v. State, 78 Fla. 167, 82 South. Rep. 778.

. The court gave the following charge: “Larceny is the felonious stealing, taking and carrying away of the property of another with intent to deprive the owner of his possession thereof. ’ ’

It is contended that the charge is fatally defective in failing to state as a part of the definition of larceny that the property was taken “without the consent of the owner’,” and that in view of the evidence the charge “was no doubt instrumental in causing a verdict of guilty.” The statute provides punishment for “whoever commits larceny by stealing of the property of another.” ‘ Sec. 5122, Rev. Gen. Stats. 1920. The word “stealing” implies a taking and asportation without the consent of the owner of the property stolen.

The words “felonious stealing ”• are used in the charge defining “larceny'and “stealing” is a taking “without right or leave, with intent-to keep wrongfully.” Webster’s Dict.; Baldwin v. State, 46 Fla. 115, 35 South. Rep. 220. ‘' Felonious ’ ’ means ‘ ‘ with intent to commit a crime. ’ ’ Webster’s Diet: The definition of “larceny” as given in the charge is one that in substknce’is frequently given in text-books and judicial decisions, and sufficiently states the elements- of the offense of “larceny.” It includes within the ordinary and popular meaning of the words used, the element of an unlawful taking and appropriation of the property of another without the consent of the owner, with intent to deprive the owner of the possession thereof. 17 R. C. L. 5. Even if a charge giving correctly a more’elaborate definition of “larceny” had been formulated and requested by counsel for the defendant, its' refusal would not have been reversible error because the charge given is adequate as a definition of “larceny,” the word “ stealing ”-being used in the definition given in the charge complained of, and in the quoted statute.

The charges given with -reference to the possession of property recently stolen and as to the concert of action between the three persons indicted, with reference to stealing the automobile were proper under the law and the facts and circumstances adduced in evidence.

The chai’ges .refused were either incorrect on the evidence. or sufficiexxtly covered by charges given. .

Other contentions xxeed no discussion.

Affirmed.

Taylór, C. J., and Ellis and West, J. J., concur. Browne, J., not participating.