Gunn v. State

Citations

• 78 Fla. 599
• 83 So. 511

Syllabus

<p>1. “Where the taking is open in the presence of others, not amounting to a robbery, and there is no concealment, or in short, where the testimony as to the taking standing alone raises a presumption of fact in favor of an innocent taking, and there is nothing in it from which a jury may legitimately infer a felonious purpose, then a verdict against the accused cannot be sustained, and it would be the duty of the court to set it aside.” Long v. State, 44 Fla. 134, 32 South. Rep. S70.</p> <p>2 Where there is no testimony to show a felonious taking by the defendant, it is error for the court to charge the jury that they could infer a felonious intent from the recent exclusive possession \\of the property alleged to have been stolen</p> <p>3. Where there is conflict in the evidence as to the intent with which the property was taken, or it is of such a character as to legitimately authorize an inference of a felonious purpose, then the matter should be submitted to the jury without any intimation from the trial court as to the force of presumptions of fact arising from any portion -of the testimony.</p> <p>4. Where an error is fundamental, this court will consider it without ian assignment based upon it.</p> <p>o Where testimony is improperly admitted over the defendant’s objection, this court will accept it as having been tendered by the State and admitted by the court for the purpose of establishing some fact tending to prove the prisoner’s guilt, or as having a tendency to influence the jury in reaching a conclusion 'of the prisoner’s guilt, and where such testimony goes to the jury with the sanction of the court and a conviction is obtained, this court cannot look into the minds 'of the jury and determine to what extent such testimony induced the verdict, nor can we say that it had no effect and was harmless.</p>