71 Fla. 97 | Fla. | 1916
This writ of error was taken to a judgment of conviction of the offense of accessory after the fact on the following count of the indictment: “The grand jurors of the State of Florida, lawfully selected, empanelled, sworn and inquiring in and for the body of the County of Jackson, State of Florida, upon their oaths as 'Grand Jurors' as aforesaid do present that one Levi Hart, late of the County of Jackson, State of Florida, on the tenth day of May, A. D. 1914, at and in the said County of Jackson, State of Florida, then and there being, did then and there unlawfully kill one Sylvester Hart, a human being, by then and there unlawfully and from and with a premeditated design to effect the death of the said Sylvester Hart shooting the said Sylvester Hart in and upon the head with a certain pistol then and there charged and loaded with gun powder and certain leaden balls, which said pistol so charged and loaded he, the said Levi Hart, then and there had and held in his hands ; and that the said Levi Hart then and there by means of
A motion in arrest of judgment, on the ground that the count of the indictment on which the conviction was had is fatally defective, was overruled' and error is assigned thereon. The Statute defining the offense is as follows:
“Whoever, not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he has committed a felony or been accessory thereto' before the fact, with intent that he shall avoid or escape detection, arrest, trial or punishment, shall be deemed an accessory after the fact, and be punished by imprisonment in the State prison not exceeding seven years, or in the county jail not exceeding one year, or by
It may not have been necessary for the State to allege in the indictment the manner in which the principal felon was maintained or assisted or aided by the accused, but as the particulars were given the means used and the accompanying intent should be of such a nature as to show the commission of the offense as defined by the Statute. See State v. Mahan, 2 Ala. 349; 2 Bishop’s New Crim. Pro. (2 Ed.) § 621; Hearn v. State, 43 Fla. 151, 29 South. Rep. 433.
In this case it is alleged that the offense was committed “by then and there agreeing and consenting- to keep his mouth shut, and not to divulge the fact that the said killing had occurred, and to assist the said Levi Hart in keeping from the public and from the officers the fact that the said Levi Hart had committed the murder aforesaid, and that the said Dan Smith did in fact aid and assist the said Levi Hart, after knowing that the said Levi Hart had committed the said murder, by then and there telling to the public and to the officers that he did not know who committed the offense of killing the said Sylvester Hart.”
If it be conceded that the means alleged as having been used when done “with intent that” the principal felon “shall avoid or escape detection, arrest or punishment,” would constitute the crime, theie is no allegation that the means alleged were used with the statutory “intent” which is an essential element of the offense as defined. The preceding allegation that the accused did “with intent' that the said Levi Hart should avoid and escape detection, arrest, trial and punishment, maintain and assist the said Levi Hart, and did unlawfully give
As the indictment is materially repugnant and defective, the motion in arrest of judgment should have been granted and the judgment is reversed.
