Rodriguez v. StateRodriguez v. State
- Reporters:
- ,
- Before:
- Terrell, Whitfield, Ellis, Strum, Brown, Buford (en banc) (per curiam)
Boone v. Gray, 84 Fla. 589, 94 So. R. 501; Wells v. Williams, 80 Fla. 498, 86 So. R. 336; F. E. C. Ry. Co. v. City of Miami, 80 Fla. 329, 86 So. R. 208; Langley v. Irons L. & D. Co., 94 Fla. 1010, 114 So. R. 769; Carlton v. Hilliard, 64 Fla. 228, 60 So. R. 220.
Reversed.
TERRELL, C. J., AND WHITFIELD, ELLIS, STRUM, BROWN AND BUFORD, J. J., concur.
Fred H. Davis, Attorney General, and Roy Campbell, Assistant, for Defendant in Error.
DAVIS, Commissioner:
The plaintiff in error is before this Court on writ of error from the Criminal Court of Record of Hillsborough County. The record before us is not properly made up, under either Rule 103, or Special Rule 3. Papers purporting to be motions to quash, bill of exceptions, instruction to jury, verdict, judgment, praecipe for writ of error, writ of error, writ of scire facias ad audiendum errores, assignment of errors and written direction to the clerk for making up transcript, are copied without any recital, or anything else, to show how they came into the case.
“We take judicial knowledge that under our rules for the preparation of transcripts upon appeal the entire record below is not necessary to be brought up in the transcript, but only such parts thereof as may be directed to be incorporated therein by the written demands of the respective parties. Therefore the absence from a transcript of any evidence of this or that step or action having been taken in the court below in a cause is no evidence to this Court that such step or action was not in fact taken therein.”
It is recited in the bill of exceptions shown in the record that “on the 12th day of July, 1928, during the term of said court, the issue joined between the said parties came to be tried before a jury.” It may be said that because of this recital it may be inferred that there was an arraignment of the plaintiff in error and that he had pleaded to the information and also that a jury was duly impaneled and sworn to try the issue; but such matters should not be left to inference. The writ of error should probably be dismissed because no sufficient transcript of record has been exhibited here, but inasmuch as the plaintiff in error has
The plaintiff in error was jointly indicted with other parties and a severance was had, and upon trial, was convicted on the count of the information charging him with buying, receiving and concealing stolen property, knowing at the time that it had been stolen, and he has assigned twenty-four errors, but there are many of them that are palpably without merit. We will discuss only those that we deem of sufficient importance to refer to.
Complaint is made of the ruling of the court in denying motion to quash the information. This motion was directed at the information as a whole, and not to each count thereof severally, and inasmuch as it contained two counts, one charging certain defendants with grand larceny, and the plaintiff in error with being an accessory before the fact, and the other charging the plaintiff in error, together with other named defendants, with the purchasing, receiving and concealing of certain personal property belonging to other parties, knowing at the time that the same had been stolen, if either of said counts sufficiently charged an offense against the laws of the State, the ruling on the motion was proper. Sigsbee v. State, 43 Fla. 524, 30 So. R. 816; Wolf v. State, 72 Fla. 572, 73 So. R. 740. It is not even contended by the plaintiff in error in his brief that the first count does not sufficiently charge an offense against our law, and the only criticism that he makes of the second count is that it was amended before he pleaded to it, and that it was not resworn to by the county solicitor, or refiled.
Plaintiff in error further complains that county solicitor altered, changed and modified the information, without first obtaining the permission of the court, and over objections of counsel for defendant, and that he failed to reswear to the same in accordance with law. There is nothing in the record, other than mere recitals in the motion to quash the information, that would indicate that the information, was changed, altered or modified. The assignments of error predicated upon such supposed state of facts are without merit.
The action of the court in permitting accomplices to testify, over objection of counsel, is also assigned as error. The ruling of the trial judge is sustained by the decisions of this Court. Peterson v. State, 95 Fla. 925, 117 So. R. 227; Adams v. State, 28 Fla. 511, 10 So. R. 106; Williams v. State, 42 Fla. 205, 27 So. R. 898; Killingworth v. State, 90 Fla. 299, 105 So. R. 834;
There was evidence submitted, sufficient, if believed, to definitely locate the place where the crime was committed,
The evidence was sufficient to sustain the verdict.
The plaintiff in error was by a jury found guilty of a felony, punishable by imprisonment in the State prison, not exceeding five years, or by fine not exceeding five hundred dollars.
The case should be remanded for proper sentence.
Per Curiam.—The record in this cause having been considered by the Court and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and adjudged by the Court that this cause should be, and the same is hereby remanded to the Court below, for proper sentence.
TERRELL, C. J., AND WHITFIELD, ELLIS, STRUM, BROWN AND BUFORD, J. J., concur.