State v. BentleyState v. Bentley
STATE of Florida, Appellant,
v.
James BENTLEY and Mathew Rivers, Appellees.
Supreme Court of Florida. Division B.
*751 Riсhard W. Ervin, Atty. Gen., and Bart L. Cohen, Asst. Atty. Gen., for appellant.
Daniel F. Hubsch, Jacksonville, for appellees.
THORNAL, Justice.
The State appeals from an order of the Judge of the Criminal Court of Record for Duval County granting a motion to quash an information charging the appellees, Bentley and Rivers, with the larcеny of a bull. The motion was grounded on a claim of former jeopardy.
On March 1, 1955, an information was filed against the two appellees charging them with the larceny on October 17, 1954, of a cow, the property of one Shep Brunson. At the trial оf the cause the evidence produced by the State showed that the larceny of the property of Brunson on the day alleged was larceny of a bull, not a cow. At the close of the State's case in the first trial, the Judge granted the appellees' motion for a directed verdict on the ground that there was a material variance between thе allegations and proof, the charge being larceny of a cow, and the proof being larceny of a bull.
Subsequеntly, the County Solicitor filed a new information charging the defendants with larceny of a bull belonging to Shep Brunson, the larceny аllegedly taking place on October 17, 1954. Thereupon, appellees filed their motion to quash the second information claiming former jeopardy. The trial Judge granted the motion.
From the order granting the motion to quash the State apрeals seeking reversal on the propositions that there was no former jeopardy and that the appellеes were estopped from taking advantage of a plea of former jeopardy because at their insistence a verdict was directed in the first case for an alleged material variance between the allegations and the proof, and the new information was filed to meet such variance.
In granting the motion to quash the second informаtion the trial Judge relied upon the case of Driggers v. State,
In Driggers v. State, supra, it should be noted that at the first trial of the matter, the accused went to trial on a plea of not guilty and the jury by its verdict found that they were not guilty. While it is true that the information in the first trial charged the defendants with larceny of a cow and the proof showed larceny of a calf, nevertheless, the defendants did not, by mоtion for a directed verdict or other affirmative action, undertake to establish in the first trial the materiality of the variance. They went to trial on a plea of not guilty and from all that appears in the record, the jury could have found thеm not guilty on the actual merits of the case. After the accused were found not guilty by a jury in the Driggers case, the State undertook to inform against them again for larceny of a calf, and it was properly held that a plea of former jeopardy was available to them as a bar to a subsequent prosecution.
Such was not the situation in the case at bаr. Here, the appellees took advantage of the variance by a motion for a directed verdict and thereby elected to establish the materiality of the variance at the trial under the first information. Having done so, they should not now be heard to contend that the variance was not material and that the two different offenses charged in actuality constituted one and the same offense.
The instant case, in our view, is more nearly controlled by the decision of this *752 Court in State v. Anders, Fla. 1952,
The case at bar is also controlled by the decision of this Court in State v. Cootner, Fla. 1952,
"`The effect of a material variance between the allegations of the indictment and the proof is to entitle defendant to an acquittаl on the particular indictment, but he is still liable to be tried for his crime. If accused is acquitted by direction of the court on the ground of material variance, he cannot plead the acquittal as a bar, for he has never been in jeoрardy, and when tried on a new indictment the crime then alleged is not the same crime as in the former indictment. And it has been held that, if accused on the prior trial maintained that the variance was material and the court directed a verdict оf acquittal on that ground, he cannot subsequently on his plea of former acquittal allege or prove that it was not mаterial.' See also, 22 C.J.S., Criminal Law, § 246." (Emphasis added.)
We, therefore, hold that the offense alleged in the second informatiоn charging larceny of a bull is not the same offense as the one alleged in the first information charging larceny of a cow. The appellees, having, at the first trial, taken advantage of the variance by their motion for a directed vеrdict and having thereby established the materiality of the variance, cannot now assert in defense that they have beеn previously placed in jeopardy when the second information, made necessary by appellees themsеlves, charges a separate and distinct offense.
The order of the lower Court granting the motion to quash the information is, therefore, reversed and the cause remanded for further proceedings in accordance with this opinion.
Reversed.
DREW, C.J., and THOMAS and HOBSON, JJ., concur.