EMMITT V. MCWHIRTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McWhirter was charged with receiving or aiding in the concealment of stolen credit cards found in his car. The court affirmed his conviction, holding that the jury could lawfully convict him under a theory that he was present aiding and abetting the actual theft by his friend Rusty, even though the evidence also permitted an inference that he himself stole the cards.
The jury could lawfully convict McWhirter because if Rusty stole the cards while McWhirter was present and aiding and abetting, McWhirter could be convicted even though the evidence also implied he might have stolen them himself. When two hypotheses of guilt exist—one charging the offense alleged and another charging a different offense—circumstantial evidence need not be inconsistent with the offense not charged to support conviction.
[1] A defendant may be convicted of buying, receiving, or aiding in the concealment of stolen property even if the evidence suggests the defendant was a confederate of the ac…
[2] Possession of stolen property by a defendant can be a collateral circumstance tending to show guilt of the charged offense.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“if, as Mc-Whirter's evidence implies, Rusty stole the cards while McWhirter danced with the victim, McWhirter could be convicted if the jury believed also that McWhirter was 'a confederate of the actual thief who was present aiding and abetting in the larceny and who received the stolen property.'”
Establishes that McWhirter could be convicted under an aiding and abetting theory even though evidence also suggested he might have been the actual thief
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCredit cards were stolen from a woman's pocketbook at the Gold Nugget Lounge in Panama City. McWhirter and his friend Rusty both danced there that eve…
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SMITH, Judge.
The information charged that Mc-Whirter “did buy, receive or aid in the concealment” of credit cards stolen from the pocketbook of a woman with whom he danced at the Gold Nugget Lounge in Panama City. Sec. 811.16, F.S. In his defense, McWhirter testified that his friend Rusty also danced there that evening, that he and Rusty drove away from the bar in McWhirter’s car and that Rusty abruptly left the car and disappeared when Mc-Whirter was arrested later that night — erroneously, as the authorities concede — for car theft. An inventory search of the impounded car revealed the stolen credit cards in a purse concealed under the right side of the front seat.
McWhirter insists that the jury could not lawfully convict him of the offense charged. It is true that, if Rusty and McWhirter or McWhirter alone stole the cards, McWhirter could not be convicted of a charge that he “did buy, receive or aid in the concealment” of them. Johnson v. State, 226 So. 2d 884 (Fla.App.2d, 1969); Ketelsen v. State, 211 So. 2d 853 (Fla.App. 3d, 1968); E. C. v. State, 280 So. 2d 492 (Fla.App.3d, 1973). But if, as Mc-Whirter’s evidence implies, Rusty stole the cards while McWhirter danced with the victim, McWhirter could be convicted if the jury believed also that McWhirter was “a confederate of the actual thief who was present aiding and abetting in the larceny and who received the stolen property.” Bargesser v. State, 95 Fla. 404, 407, 116 So. 12, 13 (1928). See also Adams v. State, 60 Fla. 1, 53 So. 451 (1910). That McWhirter was found in personal possession of still other credit cards not in his name was a collateral circumstance tending to show his guilt. Given two hypotheses of guilt, one of an offense charged and another of an offense not charged, it is unnecessary to a conviction that the circumstantial evidence be inconsistent with the offense not charged.
Affirmed.
BOYER, C. L, and MILLS, L, concur.
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Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985)…nvictions therefor upheld); Zuberi v. State, 343 So. 2d 664 (Fla. 3d DCA), cert, denied, 354 So. 2d 988 (Fla.1977) (state’s evidence deemed sufficient to link defendant to a robbery-murder; first degree murder conviction upheld); McWhirter v. State, 325 So. 2d 463 (Fla. 1st DCA), cert, denied, 336 So. 2d 602 (Fla.1976) (state’s evidence deemed sufficient to sustain a receiving stolen property conviction; defendant’s hypothesis of guilt for offense not charged need not be negated); B.S. v. State, 320 So. 2d 45…
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State v. FOX, 404 So. 2d 799 (Fla. 3d DCA 1981)…n property, together with the fact that he was found with additional stolen items, presented what was clearly a jury question of his guilt. Section 812.-022(2), Florida Statutes (1979); State v. Graham, 238 So. 2d 618 (Fla.1970); McWhirter v. State, 325 So. 2d 463 (Fla. 1st DCA 1976), cert. denied, 336 So. 2d 602 (Fla. [*800] 1976); Burroughs v. State, 221 So. 2d 159 (Fla.2d DCA 1969); Borghese v. State, 158 So. 2d 785 (Fla.3d DCA 1963); compare, R. A. L. v. State, 402 So. 2d 1337 (Fla.3d DCA 1981); A. R. v.…
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State v. Erroll Brooks, 348 So. 2d 417 (Fla. 1st DCA 1977)…e do not agree. Since 1910 the law of Florida has been that a lone thief cannot be convicted of receiving the same property he stole. Adams v. State, 60 Fla. 1, 53 So. 451 (1910). This Court recently adhered to this principle in McWhirter v. State, 325 So. 2d 463 (Fla. 1st DCA 1976). If a thief- cannot be convicted of receiving property stolen by him, he cannot be convicted of retaining property stolen by him. By adding the word “retains” in Section 812.031(1), it was the intent of the legislature to cover t…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coleen Anita Ketelsen v. State, 211 So. 2d 853 (Fla. 3d DCA 1968)
- Adams v. State, 60 Fla. 1 (Fla. 1910)
- Johnson v. State, 226 So. 2d 884 (Fla. 2d DCA 1969)
- Bargesser v. State, 95 Fla. 404 (Fla. 1928)
- E. C. v. State, 280 So. 2d 492 (Fla. 3d DCA 1973)
- Berman Leasing Co. v. Miami Auto Radiator, Inc., 280 So. 2d 492 (Fla. 3d DCA 1973)