76 Fla. 103 | Fla. | 1918
Lead Opinion
'The Plaintiff in Error, hereinafter for convenience referred to as the defendant, was informed against® in the Criminal Court of Record of Duval County upon a charge of feloniously buying and receiving certain stolen property knowing the same to have been stolen. Upon a trial he was convicted and sentenced to imprisonment^in the State prison at hard labor for a term of three years.
Writ of error was taken from this Court and the ' case is here for review.
The first, second and third assignments of error question the sufficiency of the evidence to sustain the verdict. The State’s theory was that the property alleged to have been bought and received by the defendant, namely, “three barrels of sugar of the value of thirty dollars per barrel,” was stolen by Will Jones, a negro, from a railroad car containing a number of barrels of sugar, the property of the C. D. Kenney Company, a corporation; that the defendant not only knew of the theft at the time he purchased the sugar, but had suggested it and had told Jones if he would go down to the car which was being unloaded, and bring to him, the defendant, three barrels of the sugar, that he would pay him fifty dollars for it; that Jones took the three barrels of sugar from the car, delivered them to the defendant and received the fifty dollars therefor.
There is ample evidence to support this theory. Jones was himself prosecuted for the larceny of the sugar and
The rule is that while the legal effect of evidence or the lack of evidence in its relation to a verdict rendered in a trial may by appropriate proceedings be reviewed by an Appellate Court, yet conflicts in competent testimony, the weight of legal evidence, and the credibility of competent witnesses are primarily for the determination of the Jury; and where there is some substantial competent evidence of all the facts legally essential to support the verdict, and there is nothing in the record tol indicate that the Jury were not governed by the evidence, a refusal of the Trial Court to grant a new trial on the ground of the insufficiency of the evidence to sustain the verdict will not be disturbed by the Appellate Court. Smith v. State, 66 Fla. 135, 63 South. Rep. 138; McClellan v. State, 66 Fla. 215, 63 South. Rep. 419; Barrentine v. State, 72 Fla. 1, 72 South. Rep. 280; Herndon v. State, 73 Fla. 451, 74 South. Rep. 511. This case is differentiated from the case of Adams v. State, 60 Fla. 1, 53 South. Rep. 451, in that the defendant here had no part in the actual taking and asportation of the property.
The contention is made under these assignments that it was not proved as alleged that the stolen property was
The denial of the motion of the defendant to set aside the verdict and grant a new trial in the case is assigned as error. Among the grounds of this motion is one based upon the refusal of the trial court to give to the jury a requested instruction on behalf of the defendant to the effect that the testimony of an accomplice should be received with great caution. The theory was that Will Jones, who took the property, Avas an accomplice of the defendant, who bought and received it and that, this relationship being established, the instruction should have been given and that the refusal to give it was error.
In this jurisdiction the statutory offence of buying and receiving stolen property knowing it to have been stolen is a substantial offence. The offence denounced by the statute is not the buying and receiving stolen property from the alleged thief. It is the buying and receiving
In the case of Anthony v. State, 44 Fla. 1, 32 South. Rep. 818, three persons were jointly informed against and tried upon a charge of this kind. One of such persons testified in the trial 'of the case against the plaintiff in error there and it was held that a charge such as the one requested here was a matter of right to the accused and should have been given. But in this case the witness, Will Jones, and the defendant were charged with the commission of distinct offences. The former entered a plea of guilty upon a charge of larceny; the latter was convicted in a trial upon a charge of buying and receiving the property stolen, knowing it to have been stolen. In this situation we will not hold it reversible error for he trial court to refuse to give the charge requested upon the theory that Jones was an accomplice of the defendant.
Another ground of the motion to set aside the verdict and grant a new trial to the defendant was the refusal of the trial court to give a’ requested charge upon the subject of reasonable doubt. This point was covered in the general charge, and it is settled here that it is not error to refuse requested charges that are covered in substance by charges given. Settles v. State, 75 Fla. 296, 78 South. Rep. 287; Milligan v. State, 75 Fla. 815, 78 South. Rep. 535.
Other contentions are based upon alleged errors of the trial court in overruling objections to various questions propounded to the State witness, K. W. Jones, and upon
Finding no reversible error in the record, the judgment will be affirmed.
It is ordered.
Dissenting Opinion
dissenting. — I can not concur in the decision in this case because I think the Court erred in refusing to give at the. request accomplice must be received with great caution, the jury should pass upon the weight to be given to such evidence, and when such evidence is uncorroborated, it should be carefully weighed by the jury with great caution, but if such evidence carries conviction to the mind of the jury of the guilt of the accused beyond and to the exclusion of every reasonable doubt, then the jury should give to such evidence the same effect as would be allowed to a witness who is in no way implicated in the offence.”
It is the settled law in this State that an accused has the right, as matter of law, to have the trial court- instruct the jury that the testimony of an accomplice should be received with great caution, and the refusal to so charge when requested will be error. Anthony v. State, 44 Fla. 1, 32 South. Rep. 818.
The charge was -refused upon the theory that the witness, Jones, who plead guilty to the larceny of the stolen goods, which the defendant is charged with having received, knowing them to have been stolen, was not an accomplice.
Section 3178, General Statutes of Florida of 1906, provides, “Whoever aids in the commission of a felony; or is' accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon.”
Each of these parties could have been tried for a substantive offence and the other would have been an accessory thereto. “The generally accepted test as to whether a witness is an accomplice, is whether he himself could
The word accomplice “includes in its meaning all persons who participate in the commission of a crime, whether they so participate as principal, aiders and abettors, or accessories before the fact.” I. R. C. L. 132.
Bouvier defines an accomplice as “One who is concerned in the commission of a crime” — one who steals goods and furnishes them to another who knows they were stolen, is surely “concerned in the commission” of the ciime of receiving stolen goods.
“The term in its fulness includes in its meaning all persons who have been concerned in the commission of a crime, all participes crimvnÁs, whether they are considered in strict legal propriety as principals in the first or second degree,, or merely as accessories before or after the fact; Bouvier citing Fost. Cr. Cas. 341; 1 Russ. Cr. 21; 4 Black. Com. 331; 1 Phil. Ev. 28; Merlin Report. Complice.”
In the case of People v. Coffey, 161 Cal. 433, 119 Pac. Rep. 901, 39 L. R. A. (N. S.) 704, the Court said, “If the witness has committed the crime, if he has knowingly aided and abetted in its commission, if he has advised and encouraged its commission, the existence of any one of these facts, admitted or established stamps his status as ‘that of an accomplice.”
In the instant case Jones aided and abetted in the commission of a crime of receiving stolen goods, and was an accomplice, and the charge provided for in our statute with regard to the testimony of an accomplice was erroneously refused.
The fallacy of the reasoning of those courts that hold that because certain acts may constitute two distinct crimes, for either of which both the parties implicated
For the error in refusing to give the requested charge, I think the judgment should be reversed.