70 Fla. 194 | Fla. | 1915
An information was filed against John Mathis, A. C. Harrison and J. C. McDonald, charging them with the crime of larceny of a heifer. A trial was had before a jury, which resulted in a verdict of guilty being returned against all three defendants, who attempted to bring the case here for review, but we had to dismiss the writ of error for want of a final judgment. Mathis v. State, 67 Fla. 277, 64 South. Rep. 944. Upon the going down of the mandate, the trial court sentenced John Mathis and A. C. Harrison each to confinement in the State prison at hard labor for a period of two years. The transcript recites that “J. C. McDonald not appearing, his bond was estreated and a capias issued for his 're
Eighteen errors are assigned, but we shall not discuss them in detail and shall consider only those which we think merit treatment. Some of the errors assigned have no basis in the transcript, therefore are not before us for consideration. As we held in Smith v. State, 65 Fla. 56, 61 South. Rep. 120, assignments of error predicated upon alleged facts and rulings that are not disclosed by the record cannot be considered by an appellate court. As we have repeatedly held, an assignment of error based upon the refusal of the court to give a requested charge cannot be considered by the appellate court where the transcript does not show except by the motion for a new trial that such a charge was requested, as the motion is not self-supporting. Where a requested charge is refused it must be set out in the bill of exceptions with the refusal to give it and the exception taken thereto. The refu•sal to give a requested charge should be excepted to at the time of the refusal and cannot be excepted to in a motion for a new trial. See Clark v. State, 59 Fla. 9, 52 South.
It is strenuously'urged that there is a fatal variance between the information and the proof adduced at the trial in that the information charges the defendants with the larceny of a heifer, while “the testimony discloses the theft of one calf.” To this contention we cannot agree. It is true that the information charges the larceny of a heifer and the testimony shows that the animal stolen was a female “calf about a year and a half old and still sucking.” The statute upon which the information evidently was based in Section 3299 of the General Statutes of Florida, which reads as follows : “Whoever commits larceny by stealing any horse, mule, mare, filly, colt, cow, bull, ox, steer, heifer, or calf, the property of another, shall be punihsed by imprisonment in the State prison not less than two years nor more than five years.” It is true that in Mobley v. State, 57 Fla. 22, 49 South. Rep. 941, 17 Ann. Cas. 735, which is cited to us by the pliantiffs in error, we held as follows: Where the statute makes it a felony to1 commit larceny of “any * * * cow, bull, ox, steer, heifer or calf,” an information charging the larceny of one cow is not sustained by proofs showing, without dispute, that the animal stolen was a three or four-years old steer. We do not think that this cited case supports the contention of the plaintiffs in error. Undoubtedly there is a well recognized distinction between a cow and a steer, as is pointed out in the cited cases and the authorities therein collected. A heifer has been defined by the different lexicographers as “a young cow” and it has been held that “proof of the theft of a
It is further contended that, as the information alleges the value of the animal with the larceny of which the defendants were charged as being twelve dollars, the
The correctness of certain specified portions of the general charge of the court is also questioned. Suffice it to say that when such portions of the charge are considered in connection with the entire charge no error appears therein. See Davis v. State, 54 Fla. 34, 44 South. Rep. 757; Lewis v. State, 55 Fla. 54, 45 South. Rep. 998; Tully v. State, decided here at last term.
We have carefully examined all the evidence adduced
The judgment must be affirmed as to John Mathis and A. C. Harrison, and the writ of error dismissed as to J. C. McDonald.
Taylor, C. J., and Cockrell and Ellis, JJ., concur.
Whitfield, J., absent.