# Miller v. State

> District Court of Appeal of Florida · May 17, 1966 · 187 So. 2d 51

URL: https://www.frixlaw.com/law-library/cases/7418531

## Case

- **Full name:** Theo MILLER v. The STATE of Florida
- **Court:** District Court of Appeal of Florida
- **Decided:** May 17, 1966
- **Citations:** 187 So. 2d 51; 1966 Fla. App. LEXIS 5431
- **Precedential status:** Published
- **Opinion:** Dissent by Carroll
- **Judges:** Carroll, Pearson, Swann
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7418531

## Opinion text

CARROLL, Judge
(dissenting).
I would reverse on the ground that the evidence is insufficient to support the judgment of conviction. It is axiomatic that in a criminal case each essential element of the crime charged must be proved by the state beyond a reasonable doubt. Here entry was such an element, and in my opinion it was not proved. For all that is shown in the evidence, the hole in the roof and in the ceiling below it could have been made with a tool or implement without any entry into the building. That would appear necessarily to be the case if the space between the roof and the ceiling beneath it were narrow, such as a foot or less. The depth of the air space between roof and ceiling at the point of breaking was not shown. It could have been several feet, but then again it could have been only a matter of inches. Even if the space between the roof and ceiling were as much as eighteen inches or two feet, the hole in the ceiling could have been made without any entry into the building, with the use of an axe or crowbar or other instrument of equal length. The evidence did not show what implement or implements were used, but some tools including a sledge hammer and crowbar were found in an alley at the rear of the building. To hold that there was adequate proof of entry here required an assumption, which the majority indulged, that the space between the roof and the ceiling was such that in order to make the hole in the ceiling it was necessary for the defendant to enter the building through the hole *54 first made in the roof. To do so is to supply essential evidence which the record does not contain. Therefore, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7418531. Public record. Not legal advice.