Alexander Davis, Plaintiff in Error, v. The State of Florida, Defendant in Error, 74 Fla. 100

Browne, C. J. Plaintiff in error was convicted of grand larceny at the February term, 1917, of the Criminal Court of Record for Duval County, and seeks reversal in this court on writ of error. The first error assigned is based on the denial of the defendant’s motion to direct a verdict of “Not Guilty.” This was not error. This court has several times laid down the rule that a defendant in a criminal case is not entitled as of right to such an instruction. McCray v. State, 45 Fla. 80, 34 South. Rep. 5; Leaptrot v. State, 51 Fla. 57, 40 South. Rep. 616; Hughes v. State, 61 Fla. 32, 55 South. Rep. 463; Bennett v.

State, 68 Fla. 494, 67 South. Rep. 125. The defendant contends that the testimony showed that the ring alleged to have been stolen passed into his possession with the consent of Eosa Styles, who was its lawful custodian. Rosa Styles and her sister testified that Rosa did not consent to the defendant taking the ring, and that after he had taken it he was told to return it, which he refused to do. The defendant testified that Rosa Styles consented to his taking it, and that she voluntarily let him have it to raise money for his own use.

In view of this conflicting-testimony, the motion to instruct the jury to render a verdict of not guilty was properly refused. The eighth ground of the motion for a new trial, is based on the refusal of the court to charge the jury in relation to finding the property in the possession of the defendant recently, after it was said to have been stolen. This charge was properly refused, as it was not applicable to the facts in the case.

The taking was proven by two witnesses and not denied by the defendant, and a charge covering the presumption of fact to be drawn from the possession of property recently stolen is not applicable where the actual taking is proven.

The fourth ground of the motion for a new trial is that the court- sustained, the objection to the following question propounded to the defendant on his direct examination: “Tell the jury in your own way what your relations werejivith the girl, Rosa Styles.at the time you received this ring from her.” The guilt or innocence of the defendant, depended largely on whether there was a felonious taking of the ring from. Rosa Styles by the defendant, or whether she consented to the taking, as testified to b.y. him. If they were mere acquaintances, his statement is hardly credible.

If on the other hand their relations were .very intimate, the jury, would have, been. justified in .giving ere, dence to his statement, and the defendant had the right to prove the degree of intimacy- existing between them, that the jury might determine. Avhose statement, was entitled to credit. If the defendant’s version were true there was no felonious taking, a^d he was not guilty of larceny, and testimony of their relations with each other would have, assisted the jury in knowing which party spoke the truth. In Prior v. Oglesby, 50 Fla. 248, 39 South.

Rep. 593, the court said: “Whatever evidence, is offered which will assist in knowing which party speaks the truth of the issues in an action .is relevant, and, when to admit it does not over-ride other formal rules of evidence, it should be received. We think the court erred in sustaining the State’s objection to this question. The third ground of the motion for a neAv trial is that the court erred in sustaining the State’s objection to -the following question propounded-by-the defendant to Rosa Styles on cross-examination: “Didn’t R. N.

Wade give you this ring-outright to induce.you to have sexual intercourse with him.’’ To this question the State interposed á general-objection without stating any grounds. The testimony is undisputed that Rosa Styles was/in lawful possession of the ring, and that the defendant' gdb lt'from her..: The information charges <,-yie. de,fi3ndant,.with having stolen “one diamond-ring of the, vahuemf $100 of the property, goods and chattels of ori©>E.

N..-Wade-.”; .Rosa Styles is not mentioned ifi the-iníórmatitínC The ownership of the rin°g was in issue, and the defendant had the right to prove, if he could, that' Wade had parted with the-title to the ring, and was no longer the.owner.

If he could show that Wade gave the ring to Rosa Styles, she was the owner and there was a fatal variance between the allegation of ownership and the proof, u Wade had parted with' thé'titlé to.'the ring the consideration was immaterial, and it would have been proper for the court to exclude so much of. ,the.'iqpeStio'n qs related to the consideration, but as the ownership was material to the issue, the ’defehdhht should have been-permitted to ask the question, or so much of it as related to the ownership, and the court erred in sustaining the State’-s objection to tlie question.

The judgment is reversed and a/new trial ..granted. Taylor, Whitfield and ELlis; J. J., concur. 'West,- J., disqualified: