
    Samuel Essie BARKET, Appellant, v. STATE of Florida, Appellee.
    No. Z-440.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1977.
    Samuel S. Jacobson and Albert J. Datz, Datz, Jacobson & Dusek, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Samuel Barket, Appellant, was found guilty by jury of receiving stolen property. He appeals the judgment and sentence contending that he was deprived of his right to proof of guilt beyond a reasonable doubt by the court having used the Florida Standard Jury Instruction in charging the jury on buying, receiving, and concealing stolen property. He states that the key question for the jury was whether or not the state had proved guilty knowledge, the state’s whole case on knowledge having been circumstantial. He argues that the Standard Jury Instruction (1) improperly states the Florida law, (2) violates due process by diluting the reasonable doubt requirement, and (3) violates due process by shifting the focus on knowledge from the defendant to a fictitious reasonable man.

The instruction in question lists three essential elements of the offense which must be proved beyond a reasonable doubt before there can be a conviction. The second of these elements of proof listed in the instruction is “that the defendant knew that it [the property described in the information] had been stolen.” After listing the three elements, the instruction states the following relative to the necessary proof.

“It is not necessary for the state to prove that the defendant knew beyond a reasonable doubt that the property had been stolen. It is sufficient if the circumstances of the transaction were so suspicious as to put a person of ordinary intelligence and caution upon inquiry and, nevertheless, the defendant did buy it, receive it or aid in concealing it.”

Appellant contends that the above quoted part of the instruction is contrary to the law of Florida and conflicts with the previous portion of the instruction which requires that the state prove beyond a reasonable doubt that the defendant knew that the property had been stolen; that it tells the members of the jury that they can convict the defendant even though they have a reasonable doubt as to his guilt.

In his reply brief appellant modifies the above contention of his original brief to some degree when he candidly states:

“It may well be that rather than eliminating reasonable doubt on knowledge, the instruction committee intended the instruction to mean only that the prosecution does not have to prove beyond a reasonable doubt that the defendant knew beyond a reasonable doubt that the property had been stolen.” •

Appellant in his reply brief has perceived the correct meaning of the instruction. It simply states the case law regarding receiving stolen property as it has been consistently applied to this crime throughout the years. In proving a defendant’s knowledge that the property was stolen, it is not the state’s burden to prove to the jury’s satisfaction beyond a reasonable doubt that the defendant knew beyond a reasonable doubt that the property was stolen. It is sufficient if the state proves beyond a reasonable doubt that the circumstances of the transaction were so suspicious as to put a person of ordinary intelligence and caution upon inquiry and, nevertheless, the defendant did buy the property, receive it, or aid in concealing it. This is exactly what the instruction says in brief and succinct terms.

Appellant’s contention that the instruction violates due process by shifting the focus of knowledge from the defendant to a person of ordinary intelligence and caution gives us more concern. All defendants may not be persons of ordinary intelligence and caution and yet, under the law as stated, such defendants would be held to the same standard as those of ordinary intelligence and caution. But when we consider the instruction from the standpoint of whether or not it correctly states the law of Florida, we must conclude that it does. It states the law as established and approved by the Supreme Court of Florida in numerous opinions over the years. Minor v. State, 55 Fla. 90, 45 So. 818 (1908); Franklin v. State, 66 Fla. 213, 63 So. 418 (1913); Winton v. State, 87 Fla. 104, 99 So. 249 (1924); Stephenson v. State, 89 Fla. 351, 104 So. 600 (1925); Hart v. State, 92 Fla. 809, 110 So. 253 (1926); Forrest v. State, 133 Fla. 310, 182 So. 849 (1938); State v. Graham, 238 So.2d 618 (Fla.1970). Justice Armstead Brown in his dissenting opinion in Forrest v. State, supra, in discussing a similar instruction given there, gave considerable support to appellant’s argument here. The majority opinion in Forrest stated that the instruction given there standing alone might warrant adverse criticism, but it did not hold the giving of the instruction to have been error; If the law, as established by the foregoing previous decisions of the Supreme Court, is to be overruled, it is that court which must overrule it. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

We have considered the other points raised by appellant and find no error.

We do hereby determine that the foregoing decision is one which passes upon a question of great public interest as contemplated by Section 3 of Article V of the Constitution of Florida.

AFFIRMED.

MILLS, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent.

Appellant-defendant Barket was found guilty by jury of receiving stolen property. Barket argues, primarily, that the language of the instruction was sufficiently ambiguous on the essential element of guilty knowledge to allow the possibility of confusing the jury and thereby diluting the “reasonable doubt” requirement necessary to convict.

To be convicted of the felony of receiving stolen property, Section 811.16, Fla.Stat. (1973), requires that a defendant know “the same to have been stolen”. It is an essential element of this crime that the defendant have guilty knowledge that the property was indeed stolen.

Under existing Florida case law, it appears that the requisite guilty knowledge may be proved up by evidence showing either actual knowledge of defendant that the property was stolen, or by evidence showing that a person of ordinary intelligence and caution, when placed in defendant’s transaction, would find the surrounding circumstances so suspicious as to be put on inquiry that the property was stolen.

Assuming the constitutionality of finding constructive guilty knowledge through the use of a tort-like “ordinary man”, it is still incumbent upon the state in a criminal case to prove beyond and to the exclusion of a reasonable doubt that the defendant possessed such guilty knowledge. Not only must the state so prove, but, in a jury trial such as this, it is imperative to a finding of guilt that the state’s burden of proof be clearly and distinctly, and in unambiguous terms, conveyed to the trier of fact.

The trial court instructed the jury as follows:

“Now, it is a crime commonly called receiving stolen property for any person to buy, receive or aid in the concealment of stolen money, goods, or property, knowing the same to have been stolen.
“The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are: One, that the goods or property described in the information had been stolen; two, that the defendant knew that it had been stolen; and, three, with such knowledge did buy, receive or aid in the concealment of such money, goods or property.
“Now, it is not necessary for the State to proved [sic] that the defendant knew beyond a reasonable doubt that the property had been stolen. It is sufficient if the circumstances and transaction were so suspicious as to put a person of ordinary intelligence and caution upon inquiry and nevertheless the defendant did buy, receive or aid in the concealment of said property.” (emphasis supplied)

The majority claim that this standard instruction conveys to the jury the state’s burden of proof in “brief and succinct terms”. I cannot agree. The emphasized portions of the instruction quoted above seem to imply, first, that the state must prove the essential elements of the offense beyond a reasonable doubt; however, in the next breath, the instruction reads that it is not necessary for the state to prove that the defendant knew beyond a reasonable doubt that the property had been stolen. Appellant argues, and I agree, that such language is susceptible of an interpretation that would shift the burden of proof from the state to the defendant, thereby allowing the jury to convict despite any reasonable doubt they may have as to the defendant’s guilty knowledge.

In this case, since the property was admittedly stolen, the crucial question for the jury was whether the defendant possessed the requisite guilty knowledge. While it is true that the state may prove this knowledge through actual or constructive knowledge, it still must prove it to the satisfaction of the jury beyond and to the exclusion of a reasonable doubt. If the jury is given the impression that something less on the part of the state is sufficient, then the standard instruction is erroneous, and the error fatal.

I would reverse and remand for a new trial. 
      
      . The instruction given appears on page 182 of the original “Florida Standard Jury Instructions” (Criminal) approved by the Supreme Court on May 27, 1970. The statute under which this case was prosecuted, § 811.16, Fla. Stat. (1973), has subsequently been amended and the new statute is § 812.031, Fla.Stat. (1975). The instruction on receiving or concealing stolen property has likewise been revised and now appears on page 180 of “Florida Standard Jury Instructions in Criminal Laws — Second Edition” approved by the Supreme Court on February 4, 1976; We are here concerned only with the instruction as it existed prior to its revision and the statute prior to its amendment. We point out, however, that the Legislature has written into the new statute the previous case law of Florida which is here in contention.
     
      
      .The majority opinion correctly notes the subsequent amendment of the relevant statute and its corresponding jury instruction. Though it is true we are concerned only with the instruction as it existed prior to revision, it is important to note that the substantially revised instruction clarifies both the requisite guilty knowledge required to convict and the burden of proof to be met by the state, thereby substantially reducing any inference of confusion in the minds of the jurors.
     
      
      . State v. Graham, 238 So.2d 618 (Fla.1970) and Stephenson v. State, 89 Fla. 351, 104 So. 600 (1925).
     
      
      . In the Second Edition Standard Jury Instructions (February 4, 1976) on receiving stolen property, the constructive guilty knowledge language has been incorporated in the essential elements, and the last paragraph of the first edition relating to burden of proof has been eliminated. The new instruction reads in pertinent part:
      “It is a crime for any person to intentionally receive, retain, dispose of or aid in the concealment of any stolen property of another without consent of the owner or person entitled to possession, knowing that it has been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen.
      “The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that:
      “2. The defendant knew that it had been stolen, or the circumstances were such that a reasonable man would believe that the property had been stolen. .
      The instruction relating to burden of proof is now a separate paragraph and reads:
      “The defendant has entered his plea of NOT GUILTY. The effect of this plea is to require the State to prove each material allegation of the information (indictment) beyond and to the exclusion of every reasonable doubt before the defendant may be found guilty.”
     
      
      . In Escambia County Electric Light & P. Co. v. Sutherland, 61 Fla. 167, 55 So. 83 (1911), the Supreme Court, in finding contradictory instructions to the jury, stated:
      . a charge containing contradictory propositions is universally held to be reversible error, unless the evidence is such that the jury could not have been misled. . This principle of law is based on the fundamental law of thought called ‘excluded middle’; that is, that of two contradictory or repugnant propositions one or the other must necessarily be false. There is no middle ground between such propositions and no rational way of harmonizing them. They are necessarily misleading and confusing when presented to a jury, and we are unable to say the plaintiff in error was not prejudiced by the instructions we have been considering.”
     
      
      . In State v. Bryan, 287 So.2d 73 (Fla. 1973), the Supreme Court, in reviewing a certified question from this court on the validity of a Standard Jury Instruction in Criminal Cases, stated: “The Florida Jury Instructions should be used, to such extent as may be applicable in the judgment of the trial court, but it does not follow, as the First District seems adamant in saying, that such instructions must be literally given in each and every case . . . We do not agree that ‘Any substantial deviation from use of these instructions will almost aways [sic] end in error on the part of the trial court.’ Our caveat in the general approval of these, as in other jury instructions (240 So.2d 472 (Fla. 1970)), makes express reference to the fact that the approval is only ‘generally’ of ‘the theory and technique’ involved ‘as recommended by the Committee and embodied in its proposed instructions.’ ”
     