44 Fla. 57 | Fla. | 1902
Lead Opinion
This case was referred to the court to its commissioners for investigation, who have reported that it should be reversed. After consideration the court concurs in this view.
Assignments of error urged here are that the court erred in giving a certain charge at the request of the State and in refusing one requested by the accused. The one given is ais: follows: “that while it is charged in the information that defendant received two cases of cigars which had been stolen, knowing them ¡to have been stolen at the time he received them, it is not necessary for the State to prove that he received two cases, or any other number; but if the State proves that the defendant received any part of the cigars out of the two cases, whether in or out of a case, or the property of the Savannah, Florida and Western Railway Company, of any value, which has been theretofore stolen, and knew at the time they had been stolen, then yoii should find him guilty.” The one refused reads: “the informaiton charges the defendant with receiving two cases of cigars, and that they werie stolen, and that at the time he received them he knew them to have been stolen, but the court charges you that it not sufficient for a conviction of the . defendant that the proof ©hows he received a lot of loose cigars, neither in cases nor in boxes,'even though all the other elements of the charge are proven to your satisfaction, 'beyond a reasonable doubt, and that the cigars received by him came out of and were part of, the cigars so stolen in the cases.”
In an indictment for receiving stolen goods the property which was received must be described, and hot that which was stolen, if the one embraced only such part of the other, or the other in such changed form that a description of one could not apply to the other. If the difference is only in quantity or number, it would be immaterial, as these allegations need not be proven pre
Dissenting Opinion
dissenting.
In November, 1901, an information was filed in the Criminal Court of Record of Hilsborough county, charging plaintiff in error, by the first count, with larceny, and by the second court with receiving stolen property. The property was described in the second' count as “two two cases of cigars, both of the value of five hundred dollars, of the goods and chattels of the said Savannah, Florida and Western Railway Company, a corporation, then lately before, feloniously stolen, taken and carried away.” At the conclusion of the evidence for the State, the defendant offering no testimony, the State elected
Joe Guzman testified that he was a cigar maker, and employed by defendant as such in his factory in Septem
John Simmons, otherwise known as Shimmy, testified that on the night of the fourth of September, after the freight train left, defendant went to a certain place and showed witness the two cases of cigars and told witness he would give the latter $10 to let them remain at his house that night; that he employed Lee, the hackman, at Donaldson’s bar, to haul the cigars to witness’ house; that witness went with Lee to the place-where the cigars had been left by defendant and put them in the hack and carried them to witness’ house; that he knew defendant would not be able to pay witness the $10, so witness opened one of the cases at his house and took out twenty-four boxes of cigars, and Lee took out one box, and witness nailed the case up again; that witness carried twenty-three boxes of the cigars taken out by
The evidence does not'show hów many cigars” were in each case, but the assistant State Attorney admitted in open court that they each contained five thousand cigars. /
I have not stated all the testimony of the witnesses, but only such part thereof as appears to be necessary to determine the propriety of the instructions given and refused. The testimony of Shimmy was not only contradictory in many respects, and contradicted by other State witnesses in other respectts, but he admitted he had been convicted of embezzlement and other crimes. Lee and Guzman also contradicted themselves in some respects, and there was testimony tending to show that Shimmy. Lee, and I think Guzman, were accomplices in the defendant’s alleged crime. The credibility of these witnesses was, however, for the jury, and the court could properly charge the jury upon any tenable theory deducible from their testimony, leaving the jury to judge of the credibility of the testimony, and of the sufficiency of the evidence to sustain a particular theory. From the testimony of Shimmy, in part corroborated by Lee, two theories are deducible: One that defendant received the two cases of cigars on the night of the fourth; an
Under the allegation that defendant received two cases of cigars, I think it can not be denied that he could lawfully be convicted upon proof of receiving one case of cigars; likewise if he received one case only half full, or partly filled with the cigars. The property is described as “two cases of cigars.” It was unnecessary to allege that the cigars were in cases, but having iso alleged the matter becomes descriptive and must, like all other descriptive matter, be substantially proved as laid. I do not understand that it would be necessary in such a case to prove that the cases were stolen property; they might have been the property of the defendant, which he had previously turned over to the thief for the purpose of being packed with stolen cigars, in which event, so far as the cases alone were concerned, there could be no re oeiving of stolen property by receiving defendant’s own cases from the thief, but if they were filled with recently stolen cigars when received, the defendant would be
From what has been said it will appear that in my opinion the court properly denied the motion to instruct the jury to find defendant not guilty upon the ground stated in the motion, and that there was no error in the instruction given, or in the ruling refusing defendant’s requested instruction. I think the judgment ought to be affirmed.