58 Fla. 37 | Fla. | 1909
Lead Opinion
The plaintiff in error was convicted of the crime of grand larceny and brings the judgment here by writ of error for review.
Omitting the caption, the information is as follows: “In the name and by the authority of the State of Florida: James T. Sanders, county solicitor for the county of Dade, prosecuting for the State of Florida, in the said county, under oath, information makes that Charlie En-son, laborer, late of the county of Dade and State of Florida, on the 19th day of April in the year of our Lord one thousand nine hundred and nine, in the county and State aforesaid, then and there, certain bank bills and notes commonly known and denominated as lawful currency of the United States, of divers denominations, the number and denomination of which are to the prosecutor unknown, and certain silver specie, a more particular description of which is to the prosecutor unknown, amounting in the aggregate to the sum of $100.00 lawful currency of the United States and of the value of $100.00 which said currency and specie was then and there the property of one W. J. Cole, the said Charlie Enson then and there having found did steal, take and carry away, contrary to the statute,” &c.
At the close of the evidence the defendant requested the judge to give the following instruction to the jury:
This instruction was properly refused for the reason that there was no evidence that the county solicitor knew the number and denomination of the bank bills or a more particular description of the silver specie alleged to have been stolen, and the instruction erroneously predicated defendant’s right to an acquittal on the fact that the county solicitor could easily have known a better description of the property than that given in the information. It asked too much. The question here is whether the allegation that a more particular description of the bank notes and specie was unknown to the county solicitor is sustained by the proof, not whether the county solicitor could easily have known a better description. In some jurisdictions the rule is stated to be that a variance results where it becomes apparent from the evidence that the matter alleged as unknown might have been discovered by the exercise of ordinary diligence, but these cases would seem to be properly placed upon lack of diligence or carelessness in making the accusation and not upon variance between the allegation and proof. The better rule would seem to be that to create a variance the fact of knowledge, not ability to acquire knowledge, must affirm
In discussing this question, the Supreme Court of Massachusetts, in Commonwealth v. Sherman, supra, said:
“The origin of the statement in some hooks that, if a name alleged to be unknown might with reasonable diligence have been ascertained by the prosecutor, the defendant is entitled to an acquittal, is probably to be found in some imperfect reports of English nisi prius cases. 2 East P. C. c. 16, Par. 89. The King v. Keakin, 2 Leach (4th ed.) Rex v. Walker, 3 Camp. 264; Rex v. Robinson, Holt N. P. C. 595. Upon such a case being cited Mr. Justice Littledale, an eminent common-law lawyer, said, ‘The question is whether the person is known to the grand jury. It will be difficult to prove that he was so known, and unless he was known to the grand jury, I should doubt about that case.’ Rex v. Cordy, 2 Russell on Crimes (3rd ed.) 98, note by Greaves. The earliest case which we have seen in which a traverse jury were required to find that the grand jury could not by reasonable diligence have ascertained the name was one tried at nisi prius before Mr. Justice Thomas Erskine. Regina v. Campbell, 1 Car. & Kirw. 82.
“By the much higher authority of the twelve judges of England, this matter has been put upon the right footing. In one case they held that an indictment against an accessory of a principal therein alleged to be unknown was good, although the same grand jury had returned another indictment against the principal by name. Rex v. Bush, Russ. & Ry. 372. And in another case, according to the fullest report, they stated the rule to be that ‘in order to sustain a count for the murder of a child whose name is to the jurors unknown, there must be evidence showing that the name could not reasonably have been supposed to be known to the grand jury.’ Regina v. Stroud, 1 Car. &
“It is always open to the defendant to move the judge before whom the trial is had to order the prosecuting attorney to give a more particular description, in the nature of a specification or bill of particulars, of the acts on which he intends to rely, and to suspend the trial until this can be done; and such an order will be made whenever it appears to be necessary to enable the defendant to meet the charge against him, or to avoid danger of injustice. Commonwealth v. Giles, 1 Gray, 469. The King v. Curwood, 3 Ad. & El. 815. Rosc. Crim. Ev. (6th ed.) 178, 179, 420.”
As sustaining the right of the defendant to a bill of particulars upon a proper showing in this State, see Mathis v. State, 45 Fla. 46, 34 South. Rep. 287; Thalheim v. State, 38 Fla. 169, 20 South. Rep. 938; Eatman v. State, 48 Fla. 21, 37 South. Rep. 576; Brass v. State, 45 Fla. 1, 34 South. Rep. 307.
Our statute makes bank notes and money the subject of larceny and where the required degree of certainty cannot be used in specifying the pieces or denominations of coins stolen or the number and denomination of bank bills, it will be enough to state that a better description than that
The information is sufficient in its allegations of the time and place of the larceny alleged. Baldwin v. State, 46 Fla. 115, 35 South. Rep. 220.
The evidence is sufficient to support the verdict.
The motion for new trial on the ground of newly discovered evidence was properly overruled because the defendant failed to show that the evidence offered was discovered since the trial, and that he could not have discovered it before the trial by the exercise of due diligence. A new trial will not be granted on a mere showing that new evidence has been discovered, but the defendant is required to rebut the presumptions that the verdict is correct and that he exercised due diligence in preparing for the trial. See Mitchell v. State, 43 Fla. 584, 31 South. Rep. 242; Howard v. State, 36 Fla. 21, 17 South. Rep. 84; Williams v. State, 53 Fla. 89, 43 South. Rep. 428.
What we have said disposes of all the points presented and argued.
The errors assigned are all overruled, but the judgment must be reversed for a proper sentence. The alternative sentence is erroneous in providing that the defendant be imprisoned in the State penitentiary upon default in the payment of the fine and costs. Where the primary sentence imposed is a fine and costs of prosecution only, the court should fix a period of imprisonment in the county jail, instead of in the State penitentiary, for the non-payment of such fine and costs. Section 4011 Gen. Stats. of 1906. Thompson v. State, 52 Fla. 113, 41 South. Rep. 899.
The judgment of the court below is reversed and remanded for proper sentence, at the cost of the county of Dade.
Concurrence Opinion
concurring.
One of the material allegations in this information charging larceny of currency of the United States is the one that “the number and denomination of which are to the prosecutor unknown.” A description of the property stolen is not an essential element of the offense, but such description should be alleged in an information charging larceny when it is known; and it is the duty of the prosecution to exercise reasonable diligence in ascertaining and giving a proper description of the property alleged to have been-stolen, so that the court and jury may be informed of the subject matter of the charge and that the accused may not be embarrassed in the preparation of his defense or subjected to a second prosecution for the same offense. A description of the property not being an element of the offense of larceny, where the description is not known to the prosecutor, the law, in lieu of an allegation of the description permits as a matter of necessity, to prevent the failure of justice, an allegation that the description was unknown to the prosecutor. When there is an allegation that the description was unknown to the prosecutor there should be some evidence that the description was in fact unknown to the prosecutor; though, in the absence of a material allegation requiring proof of due diligence, it may be presumed that the prosecutor, an officer of the law, exercised due diligence to ascertain and' allege the description. A failure to exercise due diligence may be remedied without injury to the accused by a bill
Dissenting Opinion
dissenting.
I am unable to concur in the conclusions of law arrived at in the majority opinion prepared in this case. At the close of the evidence the defendant requested the judge to give the following instruction to the jury: “The defendant in this case is charged with stealing certain bank bills and notes known as lawful currency of the United State of divers denominations, the number and denomination of which are alleged to be unknown to the county solicitor, and also certain silver specie, a more particular description, it is alleged, is unknown to the county solicitor, said property being alleged to be of the aggregate value of $100.00. It appears from the evidence that the county solicitor knew or could easily have known a better description at the time of the filing of the information than the description set forth in the said information, there is, therefore, a fatal variance and you will accordingly find a verdict of not guilty.”
The defendant below under the circumstances of the case was entitled to his discharge and the requested instruction should have been given, according to my view.
The property alleged to have been stolen is described in the information upon which the defendant was tried as follows: “Certain bank bills and notes commonly known and denominated as lawful currency of the United States of divers denominations, the number and denomination of which are to the prosecutor unknown, and certain silver specie, a more particular description of which is to the prosecutor unknown, amounting in the aggregate to the
The chief witness for the State, who was the owner of the property alleged to have been stolen, and who on the advice of the prosecuting attorney swore out a warrant for the arrest of the defendant, testified at the trial that the property stolen from him consisted of a check of a private individual on a bank for the sum of $20.00, three bank bills for the sum of $10. each, sis bank bills for the sum of $5. each, and enough one dollar bank bills to make up an aggregate of $100., and that he gave this description of the stolen property to the deputy sheriff shortly after the theft, and gave the same description of the stolen property on the defendant’s preliminary trial; that he knew the description of the property stolen when he first went to the prosecuting attorney’s office after the theft as well as he knew it at the time of testifying at the trial. From this it is seen that the allegation in the information to the effect that a more particular description of the property stolen was to the prosecutor unknown is not sustained by the proofs. The proofs show that he either knew of a much more accurate and definite description of the stolen property than that given thereof in the information, or that he could have easily procured such accurate and definite description thereof by simply applying therefor to the main witness for the prosecution who was the party from whom the property was stolen. Under these circumstances, according to my view of the law, there was a fatal variance between the allegation and the proofs, that entitled the defendant to his discharge. The true rule in such cases, according to my view, the one supported both by reason and the overwhelming weight of authority is that it is only permissible upon the ground of necessity to allege in an indictment that the name of a person or fact necessary to be stated is unlcnoion; and the
The facts alleged in the information to have been unknown to the prosecutor, were material facts that the defendant had the legal right to demand an allegation of in the information. If these facts were in truth unknown to the prosecutor, and could not with ordinary diligence have been ascertained by him, then, and not until then, did the necessity arise or exist which the law recognizes, permitting such facts to be alleged as being unknown. All the authorities agree that the allegation in an indictment to the effect that a name or a fact is unknown is a material averment, upon which issue is joined by the plea of not guilty, and I cannot agree with the few courts sustaining the majority opinion in their holdings to the effect that if there is no proof either way as to whether the fact
