40 Fla. 200 | Fla. | 1898
At the Fall term, 1897, of the Circuit Court of Baker county, the plaintiff in error was convicted upon an indictment charging him with breaking and entering á certain building, to-wit: a store-house, the property of one Mrs. Pons, with intent to commit a misdemeanor. The defendant moved the court to grant a new trial upon the ground, among others, that the verdict was
Only one witness testified to .the character of the building alleged to have been broken and entered, and he designated it as “Mrs. Pons’ gin-house.” He stated that he was bookkeeper for Mrs.' Pons, and had been for many years; that she carried on a general merchandise business, and that she had a gin-house, store-house and dwelling, at Sanderson; that the store-house and gin-house were separate and distinct buildings, located about one hundred yards apart, and had been thus located and separated for many years; that he knew what a gin-house was, and also what a store-house was; that this building was generally known as a gin-house, while the store building was generally known as a store-house; that the breaking and entering occurred in February, 1897, and the ginning season generally began in October, and lasted until March. He testified further that cotton seed and toll corn were sometimes stored in the gin-house building; that at the time of the trial Mrs. Pons buggy was in there, and that she kept other things in the building as occasion required. He stated further that in the gin-house were located the gins, machinery, &c., necessary to carry on the business, and that Mrs. Pons also stored cotton, cotton seed, and sometimes corn and other things in the building, but that this building was known, called and designated by the people in the community as a gin-house, and the building containing the stock of general merchandise was known and called the store-house.
The court should have granted defendant’s motion for a new trial because of a variance between the allegation and proof descriptive of the building alleged to have
The judgment is reversed, and a new trial granted.