Opinion
No. 65-465.
January 18, 1966.
Appeal from the Criminal Court of Record for Dade County, Jack A. Falk, J.
Robert L. Koeppel, Public Defender, Phillip A. Hubbart, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Herbert P. Benn, First Asst. Atty. Gen., for appellee.
Before CARROLL, BARKDULL and SWANN, JJ.
The appellant, George Jackson, Jr., defendant below, seeks review of a judgment and sentence finding him guilty of grand larceny, following a non-jury trial.
Both parties admit generally the following factual situation. The complainant, a practicing dentist, had a conversation with the defendant to the effect that he was in the market for some whiskey. The defendant stated that he could get some whiskey for Twenty Dollars per case and made arrangements to meet the complainant at a night club. The complainant met the defendant but refused to pay the money until he saw some liquor, because he did not trust him. The defendant said he would send the boss out, entered the night club, and was never seen again by the complainant.
An unknown third person came outside and had a long conversation with the complainant. Over the objection of defense counsel, the complainant was permitted to testify as to the content of this conversation. The complainant gave the unknown third party Two Hundred Twenty Dollars for the liquor. The unknown third party then went inside the night club and the complainant never saw him again, nor did he receive the liquor. There was no evidence that the defendant received any of the money involved in this cause.
Defense counsel's oral motions for a directed verdict of acquittal at the conclusion of the State's case and again after the defense had rested were denied, as was the motion for new trial.
It is clear that the unknown third party who received the money was the culprit in this cause and that the evidence herein is insufficient to sustain a conviction of the defendant for grand larceny.
The judgment and sentence appealed from are therefore
Reversed and the defendant discharged from the cause.