41 Fla. 663 | Fla. | 1899
The plaintiff in error, on the 28th day of March, 1899, in the Criminal Court of Record for Orange county, was charged with criminal trespass upon land by information as follows:
“The State of Florida.
In the name and by the authority of the State of Florida : In the Criminal Court of Record of Orange county, Florida, for Orange county, at the March term thereof, in the year of our Lord one thousand eight
The defendant moved in arrest of judgment upon the grounds, among others, that the information was bad for uncertainty, and because it did not charge a crime under the laws of the State of Florida. This motion was denied, and such ruling is assigned as error. It is contended here in support of this assignment that the information is bad because of its failure to allege an entry upon the land by the defendant, and that such entry was unlawful and felonious. This contention is untenable. Section 2516, Revised Statutes, upon which this information is predicated is as follows: “Whoever wilfully commits a trespass by cutting, scraping, injuring or destroying timber or wood standing or growing on the land of another, or by carrying away any kind of timber or wood, cut down or lying* on such land, or by digging or carrying away any stone, ore, gravel, clay, sand, turf, or mould from such land, or by carrying away anything which is parcel of the realty, shall be punished as if he had stolen personal property of the same value.” It will be observed that the act herein prohibited, is not an entry upon land, but the injuring, destroying or carrying away of timber or wood therefrom. And again, the section by its own express language fully defines the term “trespass” that it employs: “Whoever wilfully commits a trespass.” How, or in what manner? “By scraping, injuring- or destroying timber or wood standing or growing on the land of another, or by carrying away any kind of timber or wood, cut down or lying on such land,” &c. The signification of the word “wilful” as used in this statute is that the acts prohibited must be done with an evil intent and without justifiable excuse, ■ and it is unnecessary in an indictment charging the offence, to do
The defendant pleaded autrefois acquit, as follows: “And the said C. E. Tufts, in his own proper person, comes into court here, and, having heard the information read, says that the said State of Florida ought not further to prosecute the same against him because he says that heretofore, at this adjourned January term of the court on the 6th day of March, A. D. 1899, it was by the oath of R. G. Robinson, County Solicitor for the county of Orange, State of Florida, prosecuting for said State presented that the said C. E. Tufts, late of the county of Orange aforesaid, in the county and State aforesaid, laborer, on the first day of April in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms at and in the county of Orange, State of Florida aforesaid, in and upon the lands of the Eppinger and Russell Company, a corporation under the laws of the State of New York, and Jacob D. Nordlinger, to-wit: the south half of section twenty-one and the southwest quarter of section twenty-two, and the west half of section twenty-seven, and section twenty-eight, and the northwest quarter of the northwest quarter of section thirty-three, all of township twenty, south, of -range twenty-nine, east, county and
Issue was then joined by the defendant on the State’s replication.. On the same day with the joinder of issue on the replication the State’s attorney asked leave of the court to file a demurrer to the defendant’s plea of autrefois acquit, which was objected to by the defendant on the ground that it was too- late to demur, and because no cause was shown why same had not been done before. The court overruled these objections, and permitted the State to file a demurrer to the defendant’s plea; to which ruling the defendant excepted and assigns it as error.
The State then demurred to the defendant’s plea of autrefois acquit. This demurrer was sustained, and such ruling is assigned as error. In the case of Reeves v. State, 29 Fla. 527, 10 South. Rep. 901, this court has held that a demurrer to a replication to a plea in abatement reaches the plea if defective. Since, therefore, we can consider the defendant’s plea in the discussion of the ruling upon his demurrer to the State’s replication to such plea, it become unnecessary, in view of the conclusions reached, to consider the several rulings of the trial court, permitting the State to demur to the defendant’s plea after it had replied to such plea and after joinder of issue on such replication, and in sustaining the demurer of the State to such plea. The court below erred in overruling the defendant’s demurrer to the State’s replication to his plea of autrefois acquit, but such demurrer should have been sustained. The defendant’s plea of autrefois acquit is in the approved form, and alleges all the essentials to such a defense. It sets out the substantial parts of the record of the proceedings
The conclusions -reached renders it unnecessary to consider the other errors assigned. The judgment of the. court below is reversed, with directions to sustain the defendant’s demurrer to the replication of the State to the defendant’s plea of autrefois acquit, and to strike from the files the State’s demurrer to said plea, and for such further proceedings in the cause as may be conformable to law and this opinion.