Plaintiff in error was convicted under an indictment charging the breaking and entering of the dwelling house of G. W. Ryder, giving the street number, in St. Petersburg, Florida, with felonious intent, and stealing, taking and carrying away therefrom certain rugs of the value of $1600.00. There was no demurrer to the indictment.
The evidence showed that the dwelling house belonged to Ryder's wife, and that Ryder's name was G. L. Ryder instead of G. W., and hence it was claimed, that there was a fatal variance in both particulars.
As to the variance between the allegation of the indictment and the proof, in respect to the middle initial in the name of the alleged owner of the property burglarized, the record does not indicate that the defendant was in any wise embarrassed or misled thereby, and we do not regard it as a fatal variance in this case, (Burroughs v. State, 17 Fla., 643; 9 C. J. 1061, 31 C. J. 690, 849; 45 C. J. 370), nor one that, under the indictment and the facts of this case, was in any way prejudicial to the defendant. The indictment identified the house which was entered by street and number, and was sustained by the evidence. We think this sufficiently protects the defendant from a second prosecution for the same offense. Potter v. State, 109 So. R. 91; Addison v. State, 116 So. R. 629.
Nor do we regard the apparent variance as to the ownership of the dwelling a real one. True, it has been held that where a house is unoccupied, the ownership should be laid in the holder of the legal title, the real owner, as having the constructive possession. 9 C. J. 1044, citing Com. v. Reynolds,122 Mass. 454. See also 9 C. J. 1048. *Page 435 True also, it is, that this dwelling was unoccupied at the time of the entry. Mr. and Mrs. Ryder did not come down from the north until six days later. The general rule is that where a building is occupied, ownership may be laid in the actual occupant, unless he is a mere servant. Addison v. State,95 Fla. 737, 116 So. R. 629. But at common law, the rule was that, as to a dwelling house and outhouses, the ownership should be laid in the husband, although the title was in the wife, where they were living together in the house; and the rule also applied to community property. 9 C. J. 1048, and cases cited. Under our statute, the property of the wife still remains in the "care and management" of the husband. Sec. 5867, Comp. Gen. Laws. And we have held in a replevin case, that this also means the "care and custody" of the husband. McNeil v. Williams,64 Fla. 97, 59 So. R. 562, Thus, though this dwelling was not actually occupied at the time of the alleged breaking and entering, the constructive possession of the owner, the wife, and, therefore, of her husband, in view of his right to its care and custody, continued, during their absence from home, and we do not think any error was committed in alleging the ownership in the husband alone. Whether under our statutes as to married women's property, the indictment could just as well have laid the ownership in the wife, it is not necessary for us to determine on this record.
The difficult question in this case is whether or not the evidence shows any criminal intent on the part of this plaintiff in error. He was a young man of twenty-five working for a man named Morganstern, a dealer in second hand furniture. Mr. Ryder testified that when he and his wife came down from the north on November 8th they found that some valuable rugs had been taken from their dwelling; that a glass had evidently been removed from the side lights next the door, and then replaced. A truck *Page 436 driver, who was indicted jointly with the plaintiff in error, and who had been doing some hauling for Morganstern and for defendant as his employer, testified for the prosecution, that the defendant, on the afternoon of November 2nd, asked him to take him out to this address, 1269 57th Ave., N., to get some rugs for Morganstern. That they drove up in front of the house, in broad day light, several men being at work across the street, and defendant walked up to the door, opened it, and came back out with several rolls of rugs wrapped in paper. They went by defendant's home and had supper, and then drove to Morganstern's home and there delivered the rugs to him. That on the way back up town defendant paid him $7.50, saying that Morganstern had given him $15.00. The defendant testified that he got the rugs as described, except that the front door was unlocked and partly open when he went in and found the rugs rolled up near the door on the inside. That be had merely carried out the instructions of his employer, who gave him a slip of paper with the house address on it, and told him to go there and get the rugs and take them to his, Morganstern's house, and that he, defendant, thought Morganstern had bought and paid for the rugs. That Morganstern paid him a salary of $15.00 per week. That about a week later he quit Morganstern and went to Saginaw, Mich., where his wife's people lived, and it was there he was arrested. It was shown also by the evidence that Morganstern was in the penitentiary at the time of the trial, but for what cause was not shown. This, however, may account for the failure of either side to put him on the stand. This is about the substance of all the legal evidence. It is earnestly contended that all the State's testimony might well have been true, and yet the defendant entirely innocent; that the State did not go far enough with its evidence to overcome the presumption of innocence and prove the defendant's guilt beyond a reasonable *Page 437 doubt. That the burden was on the State to prove not only the breaking and entering, but also the felonious intent — the intent to steal, and this, too, beyond a reasonable doubt. That while the intent is not capable of direct proof, the State must prove circumstances from which such guilty intent may be fairly and reasonably inferred.
While the State's case was not a strong one, we would not be authorized to hold that the trial court was in error in allowing the verdict to stand. In the first place, there was testimony to show that the defendant entered this dwelling byopening the door and that he took and carried away personal property that belonged to the owner of the dwelling. There was also testimony from which the jury might have inferred that either Morganstern or the defendant had already visited this house and unlocked the door by removing the glass, and had rolled up and wrapped the rugs to be called for later, leaving the door unlocked. Then the question arises, why did they after getting the rugs, stop by defendant's home, or rather, his father's home, and wait until after supper to deliver the rugs to Morganstern, not at the latter's store, but at his home? And why did the defendant just before going by his father's home, go to the trouble to take the rugs out and leave them in a garage reached by a nearby alley, returning by and getting them after supper; why was he careful not to go to his father's with the rugs in the car? And why did the defendant voluntarily pay the driver of the car $7.50 after leaving Morganstern's, which was half the sum he said the latter had paid him? And why did the defendant, without any good reason shown by the evidence, quit Morganstern and go to Michigan a day or so after the Ryders had returned to their home?
In addition to these circumstances, the jury had an opportunity to observe the expression and demeanor of the *Page 438 defendant on the witness stand, which may have had a significance which the record does not reveal. The verdicts of juries should not be lightly set aside. In view of the circumstances outlined, it can hardly be said that the jury were entirely without evidence from which a criminal intent could be reasonably inferred, and we would not be warranted in holding that the trial judge erred in denying the motion for new trial.
Affirmed.
TERRELL, C. J., AND WHITFIELD, STRUM AND BUFORD, J. J., concur.
ELLIS, J., dissents.