Opinion
October 19, 1951.
Jack Kehoe, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
The appellant, Alan Bornstein, was informed against by the County Solicitor of Dade County, Florida, for the crime of larceny of two doors of the value of more than $50.00. He was placed upon trial and by a jury convicted of the crime of grand larceny and the trial Court pronounced him guilty and sentenced him to serve a period of one year in the State Prison at hard labor. Bornstein perfected an appeal therefrom to this Court.
It is here contended: first, that the State's evidence was legally insufficient to sustain the verdict; second, the quantum of proof adduced by the State fails to establish the guilt of the defendant-appellant to the exclusion of and beyond a reasonable doubt; and third, the evidence adduced is legally insufficient to establish the value of the two doors is more than $50.00 at the time they were alleged to have been stolen. Section 811.01, F.S.A., makes the larceny of property of the value of fifty dollars or more grand larceny. Section 811.02, F.S.A., provides that property stolen of a value of less than fifty dollars shall constitute petit larceny and is punishable as a misdemeanor.
As to appellant's contentions one and two, supra, we find in the record ample evidence to sustain the verdict of the jury, although on some points sharp conflicts or disputes are observable, but, under our system, we are without authority to substitute our views and conclusions for those of the jury. The appellant, as the evidence is studied, was placed at a great disadvantage and embarrassment in finding or pointing out the individual from whom he purchased the two doors alleged to have been stolen.
The value of the two doors, as alleged in the information, is fixed at the sum of "more than fifty ($50.00) dollars." It is fundamental that the burden of proof, as a matter of law, rested on the State of Florida to establish the value of the two doors at the sum of $50.00, to the exclusion of and beyond a reasonable doubt. It was the defendant's view that similar doors were worth about fifty dollars. The State's evidence on the point of value is to the effect that the two doors were worth "customarily more than fifty dollars." It is our conclusion that the evidence adduced by the State failed to establish the value of the two doors alleged to have been stolen at the amount of sum of fifty dollars, as required by law.
Section 924.34, F.S.A., authorizes the appellate court, after a review of the evidence, to reduce the degree or offense of which the defendant was found guilty to some lesser degree or offense as reflected and fully sustained by the State's evidence. It is our view and conclusion that the evidence adduced sustains the offense of petit larceny and, pursuant to the provisions of Section 924.34 and the adjudications of this Court, the defendant-appellant is adjudicated guilty of petit larceny.
The judgment appealed from is reversed with directions to the trial court to enter a judgment against the defendant-appellant for the offense of petit larceny.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.