Long v. State

Citations

• 44 Fla. 134

Syllabus

<p>1. Declarations of a prosecuting witness as to his ownership of certain cattle, made at the time when he was not in possession thereof, are not made in defendant’s presence, are not admissible against ‘defendant on trial for the larceny of such cattle.</p> <p>2. In order to render a bill of sale absolute on its face a mortgage, it must have been executed with the intention or purpose of operating as a security.</p> <p>3. A charge asserting that, if it was verbally agreed between the parties to the transaction, at the time of executioof an absolute bill of sale of certain cattle, that the vendor should be allowed to redeem or have the cattle back 'upon payment of a certain sum of money, the transaction constituted a chattel mortgage only, is properly refused, as the facts thus hypothesized are not inconsistent with an absolute sale, in the absence of an intention that the conveyance should be a security.</p> <p>4. A charge asserting that a chattel mortgage does not operate as a conveyance of the legal title or right of possession is properly refused, where- there is evidence tending to show that the mortgagee by th-e terms- of the instrument and by a verbal understanding between the parties was to have possession of the property.</p> <p>5. The rule announced in Dean v. State, 41 Fla. 291, 26 South Rep. 638, that “where the taking is open and there is no subsequent attempt to conceal the property, and no denial, but an avowal of the taking, a strong presumption arises that there was no felonous intent, which must be repelled by clear and convicting evidence, before a conviction is authorized,” it is not a rule of law to be given in charge to a jury in prosecutions for larceny, but a presumption of the fact which the jury may apply in proper cases and which may guide the court in cases where it is applicable in determining the sufficiency of evidence to support a verdict of guilty.</p> <p>6. To constitute larceny there must exist both a felonious ■intent and a carry