This appeal is from a conviction of grand larceny and presents three questions. The first relates to the refusal to grant a change of venue. The second, in substance, questions the sufficiency of the evidence to sustain the verdict of guilt. These have been found without merit and comment on them would serve no useful purpose.
The third question is:
"Where a defendant is charged with breaking and entering a store with intent to commit grand larceny, and with grand larceny of a safe and its contents therefrom, and when the evidence shows that he was actually present while his accomplices were trying to break into the store but before they succeeded, and when the evidence further shows that he was constructively present, aiding and abetting, at the time his accomplices broke and entered and committed the larceny, and when the verdict acquits of the burglary but convicts of the larceny, should such verdict be set aside on the theory it is inconsistent?"
This question emerges from testimony to the effect that the two appellants, who were policemen, entered into a conspiracy *Page 752 with two thiefs to burglarize a store located on the beat of appellants; that the store was broken and entered and a safe was removed by the thieves which yielded a quantity of cash which was divided with one of the appellants, the other (Lukers) failed to get his cut.
Appellants rely to a great extent on Bergesser v. State,95 Fla. 404, 116 So. 12, and Gordon et al., v. State, 97 Fla. 806,122 So. 218, for reversal. These cases are not controlling. In the first place the factual background is so different that we shall not consume the necessary space to differentiate between them. In the second place, since those cases were decided the Legislature of Florida adopted the Criminal Procedure Act and in Sec. 924.33, Fla. Stat., 1941 F.S.A., it states:
"No judgment shall be reversed unless the appellant court after an examination of all the appeal papers is of the opinion that error was committed which injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant."
Fundamentally, the law has never condemned a verdict for inconsistency. See Dunn v. U.S., 52 S.Ct., 189,284 U.S. 390, 86 L. Ed. 256, 80 A.L.R. 161; 23 C.J.S. page 1092. Some courts have refused to approve them. What comfort appellants might have gained from the Bargesser and Gordon cases, supra, was removed by the above statute, the effect of which was to place us in line with the rule announced in Dunn v. U.S., supra.
We further agree with the State that the case of Brown v. State, 135 Fla. 90, 184 So. 777, is controlling and wherein we held:
"An acquittal under information charging breaking and entering a certain building with intent to commit larceny did not bar prosecution for larceny based on the same occurrence."
See also Albritton v. State, 137 Fla. 20, 187 So. 601.
The judgment is affirmed.
CHAPMAN, C. J., TERRELL, BROWN, THOMAS and SEBRING, JJ., concur.
*Page 753BUFORD, J., dissents.