Duke v. StateDuke v. State
No reversible error has been made to appear by the record or briefs; the verdict is a proper one and there is sufficient evidence to uphold it; the jury was properly instructed in the law applicable to the issues and the judgment entered upon the verdict is without error. Accordingly the trial court rightly denied the motion for new trial.
Affirmed.
WHITFIELD, TERRELL, BROWN and CHAPMAN, J. J., concur.
W. D. Bell, for Plaintiff in Error;
Cary D. Landis, Attorney General, and Tyrus Norwood, Assistant Attorney General, for the State.
PER CURIAM.—In this cause Mr. Chief Justice ELLIS, Mr. Justice BUFORD and Mr. Justice CHAPMAN are of the opinion that the judgment of the Circuit Court herein should
Affirmed.
ELLIS, C. J., and WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J. J., concur.
PER CURIAM.—The information herein contained three counts charging that the defendant (1) “did unlawfully, willfully and maliciously set fire to and burn a certain dwelling house * * * the property of Paul Duke“; (2) “did unlawfully, maliciously and willfully set fire to and burn that certain dwelling house * * * the property of Cleo Duke“; (3) “did unlawfully, willfully and maliciously set fire to and burn that certain dwelling house * * * the property of Harold Duke.” There is no allegation in any count as to the occupancy of the dwelling house alleged to have been burned.
A motion was made to quash the information upon grounds going to the validity of the statute defining the offense, as well as to the sufficiency of the information as a pleading.
Chapter 15603, Acts of 1931, is as follows:
“AN ACT to Define and Punish the Offense of Unlawfully Burning, Setting Fire to, or Attempting to Burn or Set
Fire to, Property; or Aiding, Assisting, Counselling, Procuring or Advising in the Burning of or Setting Fire to, Property in This State, Whether the Same Would be Arson at Common Law or Otherwise; to Denominate as ‘Arson’ the Crime Hereby Denounced, and to Divide the Same Into Degrees, and to Provide the Punishment for Each Degree. “Be It Enacted by the Legislature of the State of Florida:
“Section 1. ARSON.—First Degree. Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any any dwelling house, whether occupied, unoccupied, or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of Arson, in the First Degree, and upon conviction thereof, be punished by imprisonment in the State prison for not more than twenty years.
“Section 2. ARSON.—Second Degree. BURNING BUILDINGS, ETC., OTHER THAN DWELLINGS.—Any person who willfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any building or structure of whatsoever class or character, whether the property of himself or of another, not included or described in the preceding section, shall be guilty of Arson in the Second Degree, and upon conviction thereof, be punished by imprisonment in the State prison for not more than ten years.
“Section 3. ARSON.—Third Degree.—BURNING OF OTHER PROPERTY.—Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any personal property of another of whatsoever class or character of the value of Twenty-five or more Dollars, shall be guilty of Arson
in the Third Degree, and upon conviction thereof, shall be punished by imprisonment in the State prison for not more than three years. “Section 4. ARSON.—Fourth Degree. ATTEMPT TO BURN BUILDINGS OR PROPERTY.—Any person who willfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any of the buildings or property mentioned in the foregoing sections, or who commits any act preliminary thereto, or in furtherance thereof, shall be guilty of Arson in the Fourth Degree and upon conviction thereof be punished by imprisonment in the State prison for not more than two years or fined not to exceed One Thousand Dollars.
“Section 5. All laws or parts of laws in conflict with this Act are hereby repealed.
“Section 6. This Act shall take effect July 1, 1931.
“Approved June 25, 1931.”
See
This Act was held valid in Love v. State, 107 Fla. 376, 144 So. 842. The prior statute relating to arson was held to be invalid because it violated
It is in effect argued here that Chapter 15603 violates
It is within the power and judgment of the Legislature by statute to define arson and to make it applicable to dwelling houses or other property, or to define different degrees of arson with reference to different kinds of property; and it is not necessary for any of such definitions to conform to common law definitions of arson or to definitions of arson contained in standard authorities on definitions, where the statute definitely and sufficiently gives the elements of the crime defined, and no provision of organic law is thereby violated. The statute is quoted above and its title does not express more than one subject of legislative regulation; and the subject expressed in the title is not misleading as to the matter contained in the body of the statute.
The subject of the enactment is the definition and punishment of crimes denominated arson, whether the same would be arson at common law or otherwise; all are kindred offenses and all are denominated arson, each a stated degree of arson with appropriate punishment for each degree, all definitely defined.
All the provisions contained in the body of the Act directly relate to the subject expressed in the title or to matters properly connected therewith.
It is urged that the statute “endeavors to not only change
The Constitution requires the title of an Act to express the subject of the Act, nor the mode or manner in which the subject is treated or regulated by the Act, and unless the title is misleading as to, or is too restricted to cover, the subject of the Act or matters contained in the Act, the Constitution may not be violated.
While at common law the usual definition of the crime of arson is “the willful and malicious burning of a dwelling house, or outhouse within the curtilage of a dwelling house of another,” yet the Legislature by statute may change the definition of arson so that the crime may be extended to the burning of other houses, or property other than dwelling houses or other houses within the curtilage, whether the houses be unoccupied or not as an element of the statutory offense. See Williams v. State, 100 Fla. 1054, 132 So. 186; 6 Corpus Juris Secundum 718, 733; 4 American Jurisprudence 87, 103.
The words “dwelling house” may mean “a place of habitation and abode“; and in a prosecution under the common law definition of the crime of arson, it may be proper or necessary to allege that the dwelling house was occupied by a designated person. But as the statute has defined arson to be in stated cases whether the “dwelling house” unlawfully burned be “occupied, unoccupied or vacant,” it is not essential that the information alleged the name of the occupant of the dwelling house in this case. Under the statute the crime relates to a dwelling house, without reference
In defining four degrees of arson, the statute is not controlled by common law definitions of words or of elements of the crime of arson. Chapter 15603 does not expressly amend the previous statutes on the subject of arson, but expressly repeals all laws or parts of laws in conflict with the enactment. Section 1 of Chapter 15603 embraces “any dwelling house; whether occupied, unoccupied, or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another,” and Section 2 embraces “any building or structure of whatever class or character, whether the property of himself or of another, not included or described in the preceding section“; but this does not require an allegation or proof as to the occupancy of a dwelling house in prosecutions for arson in the first degree, under Section 1, Chapter 15603.
Unlike Section 1, Chapter 11812, Acts of 1927 (
A witness for the State who testified that the defendant called him at night to help control the fire, was asked,
“Q. What did you see when you got down there?
“A. Just saw both houses afire.
“Q. What both houses?
“A. No. 1 and No. 6.
“Q. You mean the house known as the Paul Duke house and house Harold Duke lived in, both?”
“A. Yes, sir. * * *”
“Now comes the defendant and moves the Court to require the State at this time to make plain as to which house he is prosecuted—which of the dwelling houses named in the information.
“Mr. Stubbs (the State Attorney): Both of them.
“Judge Bell: Would like for your honor to rule on my motion. I am going to state at this time the defendant is taken by surprise by the change of the State‘s theory of this case, because it was distinctly stated here at the outset of the case when we were arguing with reference to a choice or an election between the different counts of the information, State‘s Attorney distinctly said that it was the same house in each count, but he was merely alleging the ownership in different ways. Now he is placing before this jury testimony with reference to two houses, and we ask, as a matter of fairness, so that the jury may know what they are trying him for, which house he is trying him for.
“The Court: I will have to leave it to the jury.
“To which ruling and decision of the Court the defendant by counsel did then and there except.”
WHITFIELD, TERRELL and BROWN, J. J., concur.
ELLIS, C. J., and BUFORD and CHAPMAN, J. J., dissent.