137 Fla. 513 | Fla. | 1939
Plaintiff in error, Ann Duke, was convicted in the Circuit Court of Lee County, Florida, as an accessory before the fact for criminal trespass by cutting and carrying away pine and cypress timber of the value of $500.00 from the South Half of South East Quarter of Section 8, Tp. 46, South, Range 25 East, located in Lee County, Florida, and property of Peninsula Realty Investment Company. Several colored men working for Ann Duke in cutting and removing the timber were likewise informed against. On February 2, 1938, she was adjudged guilty and sentenced to pay a fine and from this judgment of conviction she has perfected an appeal to this Court.
One of the first assignments here is that the information is fatally defective. It is in one count and drawn under Sections 7111, 7384 and 7396, C.G.L. The trial court, after argument, overruled and denied a motion on the part of counsel for plaintiff in error to quash the information. Likewise a plea in abatement filed by the defendant raised or presented to the trial court defects in the information, but, after argument of counsel, a demurrer interposed by the State through the State Attorney and directed to the plea in abatement was sustained. It is the contention of Counsel for plaintiff in error that as she was informed against as an accessory before the fact, she could not be placed upon trial under the information until the principals named in the information had been placed upon trial, convicted, and a judgment of conviction lawfully entered of record against them. In support of this contention they rely on and cite McGahagin v. State,
When the State rested its case, the record shows that counsel for the defendant moved the court to direct the jury to render a verdict of not guilty on the grounds (a) the evidence failed to show that a felony had been committed; (b) the State had failed to establish that the timber involved was worth fifty dollars or more; (c) the evidence was insufficient to support a verdict of conviction. The motion was overruled and denied by the trial court, and this adverse ruling is assigned as error. It is clear that this assignment *517 presents the question of the sufficiency of the evidence to sustain the verdict. We have carefully read the evidence adduced at the trial. The title to the land and timber is admitted to be in Peninsular Realty Investment Company. The defendant admitted to several of the witnesses that her darkies cut the timber. The two points in dispute are (a) the value of the timber involved; (b) did the defendant buy and pay Mr. Thompson for the timber? The evidence shows that the value of the timber in question ranged from some $10.00 to $95.00. The jury could have found from the evidence that the pine and cypress ties were of the value of $95.00 or less. The defendant showed that she paid the sum of $100.00 to a Mr. Thompson for some timber which she thought or believed was the timber involved here. The records appearing in the office of the Clerk of the Circuit Court of Lee County could have been examined by plaintiff in error and the question of the title or ownership of the timber fully settled prior to her going upon the lands with her employees, but she took no steps along these lines.
If the evidence is conflicting or will admit of different reasonable inferences, or if there is evidence to prove the issues, it should be submitted to the jury as a question of fact to be determined by them and not taken from the jury and passed upon by the court as a question of law. See Cameron, etc. Co. v. Law-Engle Co.,
It is next contended that the lower court erred in charging or instructing the jury on the law controlling the case at bar. We have carefully considered the entire charge in light of the objections made by counsel for plaintiff in error. If the charge of the court is considered as an entirety, it appears that the law controlling the issues before the jury was well presented. While it is true that given portions of the charge could be assigned and briefed as error and convincing argument presented, but the rule controlling this court as to error based on instructions to the jury is that the charges assigned as error should be considered in the light of the entire charge given. In the case of Lewis v. State,
"It is settled law in this court that in passing upon a singled instruction or charge it should be considered in connection with all the other instructions and charges bearing on the same subject, and if, when thus considered the law appears to have been fairly presented to the jury, and an assignment predicated upon the giving of such instruction or charge must fail, unless under all the peculiar circumstances of the case the court is of the opinion that such instruction or charge was calculated to confuse, mislead or prejudice the jury. Atlantic Coast Line R. Co. v. Crosby,
We have considered each assignment of error and feel that substantial justice was awarded in the lower court. The judgment appealed from is affirmed.
TERRELL, C.J., and WHITFIELD and BUFORD, J.J., concur.
BROWN, J., not participating.
Justice THOMAS not participating as authorized by Section 4687 Compiled General Laws of 1927 and Rule 21-A of the Rules of this Court.
