Albritton v. State

32 Fla. 358 | Fla. | 1893

Maury, J.:

Andrew Albritton, Henry Albritton and Mitchell Al-britton were jointly indicted in the Circuit Court for Polk county for the larceny of a cow. Mitchell not being present, Andrew and Henry were jointly tried and convicted as charged in the indictment. Henry alone has prosecuted a writ of error to reverse the judgment of the court against him. '

The indictment — omitting its formal allegations— charges that Andrew Albritton on a certain day within the county of Polk, with force and arms, “one cow, of the property of one Nathaniel E. B. Roberts, then and there being found, feloniously did take, steal and carry away;” and that one Henry Albritton and one Mitchell Albritton with force and arms “were then and there feloniously present, and feloniously aiding, abetting, counseling and procuring him, the said Andrew Albritton, the larceny to do and commit,” against the form of the statute in such case made and provided, and against the peace and dignity of the State of Florida.

We do not know what the testimony in the case was, the bill of exceptions not undertaking to give any of it.

In charging the jury the court, after stating the issue in the case and that the defendants were entitled to the presumption of innocence until the contrary is shown by the evidence beyond a reasonable doubt, said: “If you believe from the evidence in this case beyond a reasonable doubt that the defendant, Henry Albritton, took and carried away for the purpose of appropriating the same to his ov*n use, and with the intent to steal the same, one cow, ■ the property of Nathaniel E. B. Roberts, that it was done in this county and State, that it was done within two ye^irs prior to the finding of this bill of indictment, then I charge you that you would be authorized to find him guilty as charged. And further, if you believe from the evidence in this case beyond a reasonable doubt that Andrew Albritton was then and there present feloniously aiding, abetting, counseling and procuring the said Henry Albritton to commit the said larceny, then I charge you would be authorized to find him guilty as charged. I further charge you that pérsons participating in a crime are either principals in the first or second degree. A principal in the first degree is one who is the immediate perpetrator of the act. A principal in the second degree is one who did not commit the act v ith his own hand, but wras present aiding and abetting — principal in the second' degree being equally guilty of the act as if he was the perpetrator thereof. You are to look at •all the facts and circumstances of the case as made by the evidence produced before you. and arrive at the truth of the case, and let that be your verdict.” The only objection made to this charge, and the only ground urged here by counsel for the plaintiff in error to reverse the judgment is, as stated by counsel, the confounding the names of the defendants by the judge in his charge. Andrewr Albritton is charged in the indictment as having committed the larceny, and Henry and Mitchell as being present aiding and abetting in the perpetration of the offense. Under this indictment Henry and Mitchell Albritton are not charged as accessories either before or after the fact, but all three of the named defendants are indicted as principals, Andrew in the first degree, and Henry and Mitchell in the second degree. The indictment here is different from the one in the case of Ex parte Bowen, 25 Fla., 214, 6 South. Rep.,65. “An accessory before the fact is one who, though absent at the time of the commission of the felony, doth yet procure, counsel, command and .abet another to commit such felony. * * * An accessory after the fact is one who, when knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon, whether he be a principal or an accessory before the fact. ’* * Principals in the second degree are those who are present, aiding and abetting at the commission of the act.” Montague vs. State, 17 Fla., 662. The punishment prescribed for principals in the first and second degrees is the same under our law. Rev. Stat., sec. 2354. Under the indictment before ns charging Andrew Albritton with the commission of the felony, and Henry Albritton as being present aiding, abetting and procuring the commission of the offense, both of them could have been convicted on a state of facts showing-that Henry committed the offense and Andrew was present aiding, abetting and procuring the commission thereof. The offense charged against all of them is the same. State vs. Ross, 29 Mo., 32; State vs. Kirk, 10 Oregon, 505; Commonwealth vs. Chapman, 11 Cush., 422; State vs. Fley and Rochelle, 2 Brevard, 338; Boyd vs. State, 17 Ga., 194; Brister vs. State, 26 Ala., 107.

The court instructed the jury as to principals in the-first and second degrees, and they could not have been misled as to this. The evidence is not before us, and assuming that the instruction was based upon testimony that could properly have been introduced, if Henry Al-britton committed the larceny, as submitted by the court to the jury, he could have been properly convicted under the indictment. The ground of objection, in the-motion for a new trial, to the juror Costme, has not been discussed by counsel for plaintiff in . error, and will be treated, under the rule, as abandoned, though it has not escaped attention in considering the case.

The judgment should be affirmed, and it will be so-ordered.