Allison v. Mayo

• Decision Date: 01 April 1947
• Citation: 158 Fla. 700,29 So.2d 750
• Parties: ALLISON v. MAYO.
• Court: Florida Supreme Court

29 So.2d 750

158 Fla. 700

ALLISON v. MAYO.

Florida Supreme Court

April 1, 1947

E. M. Baynes, of West Palm Beach, for petitioner.

J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.

CHAPMAN, Justice.

This is a case of original jurisdiction. The petitioner, W. S. Allison, with Joseph Eldridge Tomerlin, alias Charlie Jones, was informed against in the Circuit Court of Marion County, Florida, in two separate counts. The first count charged that the defendants on March 17, 1941, with force and arms at and in Marion County, Florida, did unlawfully break and enter a certain building then and there the property of the Texas Company, Incorporated, with the intent to commit a felony to-wit, to take, steal and carry away and convert to their own use certain personal property of another of the value of more than $50.

The second count of the information charged that the defendants on March 17 1941, did unlawfully enter without breaking a certain building then and there the property of the Texas Company Incorporated, with the intent to commit a felony, to-wit, to take, steal, carry away and convert to their own use certain personal property of another of the value of more than $50. The petitioner and Joseph Eldridge Tomerlin, alias Charlie Jones, were placed upon trial before a jury, when the following verdict was returned: 'We, the jury, find the defendants Joseph Eldridge Tomerlin, alias Charlie Jones, and W. S. Allison, guilty as charged, so say we all. Earnest Molnar, Foreman.' The trial court adjudged W. S. Allison guilty, and stated 'that you, W. S. Allison, for the crime of which you have been and stand convicted shall be imprisoned at hard labor in the State Prison of the State of Florida for a period of fifteen years'.

The first count of the information is drafted under the provisions of Section 810.02, Fla.Stats.1941, F.S.A., and the penalty for its violation is imprisonment in the State Prison for a period of not exceeding fifteen years. The second count of the information is drafted under the provisions of Section 810.03, Fla.Stats.1941, F.S.A., and the penalty for its violation is punishment by imprisonment in the State Prison for a period not exceeding five years, or by a fine not exceeding $1,000. Section 919.15, Fla.Stats.1941, F.S.A provides, 'If different offenses are charged in the indictment or information the jurors shall, if they convict the defendant, make it appear by their verdict on which counts, if the indictment or information is divided into counts, or of which offense they find him guilty.' The petitioner, W. S. Allison, alleges in his petition for a writ of habeas corpus that he has served under the judgment imposed in the State Prison more than five years of his sentence of fifteen years and that further imprisonment thereunder is invalid illegal and contrary to both the State and Federal Constitutions; and that the two counts of the information and the verdict are vague, indefinite, insufficient, repugnant and inconsistent.

Thus the record reflects that the petitioner Allison, by the general verdict of the jury, was convicted for the violation simultaneously of two separate statutory crimes: (1) the crime of breaking and entering; and (2) entering without breaking. Each count charges the entry of that certain building of the Texas Company on March 17, 1941, with the intent to commit a felony, to-wit, 'to take, steal, carry away and convert to their own use certain personal property of another of the value of more than fifty dollars.' It simply was impossible for the petitioner to have entered the building of the Texas Company without breaking and at the same time to have broken and entered the same building. The petitioner either (1) broke and entered the building or (2) entered the building without breaking. He could not do both at the same time. The verdict and judgment rests on these two inconsistent counts of the information.

The case of Harris v. State, 53 Fla. 37, 43 So. 311, involved inconsistent counts of an indictment. The first count charged the defendant with the larceny of one coat of the value of $15 and one pair of pants of the value of $10, all of the value of $25. The second count charged that the defendant did have, receive, buy and aid in the concealment of one coat of the value of $15 and one pair of pants of the value of $10 and of the total value of $25, then knowing that the property had before been stolen, taken and carried away. The verdict of the jury was 'We, the jury, find the defendant guilty of receiving stolen goods.' We held the verdict was illegal, inconsistent and a nullity.

The case of Bargesser v. State, 95 Fla. 404, 16 So. 12, involved inconsistent counts of an information and a verdict and judgment entered thereon. The first count of the information charged the larceny of a Ford coupe, property of Erin Fitzgerald. The second count charged that the defendant feloniously bought, received, concealed and aided in the...