D. B. C., a child, Appellant, v. STATE of Florida, Appellee, 341 So. 2d 230

RAWLS, Acting Chief Judge. Appellant was charged by petition as follows: “that . . . is a delinquent child because: On the 6th day of February, 1976, the said child did then and there wantonly and maliciously throw a missile, to-wit: rocks, at railroad cars of the SEABOARD COAST LINE RAILROAD CO., contrary to

Section 790.19, Florida Statutes.” The factual circumstances involved in this delinquency proceeding are quite similar to those recited in J. T. K. v. State, First District Court of Appeal, 341 So.2d 229, opinion filed December 23,1976, although in the instant case the sole witness to the alleged incident, a Southern Railroad policeman, testified that while approximately 250 to 300 yards away, he saw three boys, one of whom was appellant, throwing “something” in the direction of the train but did not see what they were throwing.

It was upon this evidence that the trial judge found that the allegations of the petition were sustained. The evidence in this cause wholly failed to prove the felonious conduct proscribed by the statute. The trial judge erred in not granting appellant’s motion for judgment of acquittal. Pursuant to this court’s opinion in J. T. K. v. State, supra, this cause is reversed with directions that appellant be discharged from the order dated May 18, 1976, placing him on probation. REVERSED. MILLS and SMITH, JJ., concur.