Baldwin v. State

• Decision Date: 20 October 1903
• Citation: 35 So. 220,46 Fla. 115
• Parties: BALDWIN et al. v. STATE.
• Court: Florida Supreme Court

35 So. 220

46 Fla. 115

BALDWIN et al. v. STATE.

Florida Supreme Court, Division B.

October 20, 1903

Error to Criminal Court, Volusia County; Isaac A. Stewart, Judge.

Emery Baldwin and Albert Tillman were convicted of larceny, and bring error. Affirmed as to Tillman, and reversed as to Baldwin.

Syllabus by the Court

SYLLABUS

1. Under Rev. St. 1892, s 2894, the omission of the work 'felonionsly' from an information for larceny is not fatal, nor does such omission make the information so vague indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him, after conviction or acquittal, to substantial danger of a new prosecution for the same offense.

2. In an information for larceny the addition of the words 'lawful money of the United States' to the allegation of value is neither necessary nor usual.

3. When the crime is alleged to have taken place in a certain county the omission of the words 'then and there being found' from an information for larceny is not fatal.

4. It is not error, after charging that, in order to convict, the jury must be satisfied beyond a reasonable doubt of defendant's guilt, and defining the phrase 'reasonable doubt,' to refuse to charge: 'If from the testimony in this cause there arises in your minds, or in the minds of either of you, a reasonable doubt as to defendant's guilt, you cannot find such defendant guilty.'

5. An instruction: 'To constitute a person a principal in the commission of larceny, the person must have been actually present at its commission,' ignores the idea of constructive presence, and is properly refused.

6. Instructions that invade the province of the jury, single out and emphasize specific parts of the testimony for consideration without reference to other parts, and are argumentative, are properly refused.

7. A charge in a prosecution for larceny that 'any participation in a general felonious plan, provided such plan be concocted, and there be actual or constructive presence is enough to make one a principal as to any crime committed in the execution of such plan,' is not error when joined with other charges to the effect that, to be convicted of larceny as a principal, one must be actually or constructively present at the specific larceny charged in the information, and that previous consent or procurement of the caption and asportation or the subsequent reception of the thing stolen, or aiding, concealing, or disposing of it, will not make one a principal.

8. In a prosecution of A., B., and C., for larceny, the testimony of A. as to a general scheme concocted among them, whereby B was to get grain from the warehouse of D. and put it in a shed, from which A. was to haul it to C.'s barn, is the direct evidence of the witness against all, and not subject to objection by the codefendants, as would be an extrajudicial declaration or admission of a conspirator after the conspiracy was ended. Testimony as to the acts of the conspirators three weeks after the date of the alleged larceny charged is admissible if done in pursuance of the general scheme or conspiracy of which the crime charged was a part.

9. A motion to strike the whole testimony of a witness, when a part of it is admissible, is properly refused.

10. Evidence examined, and found sufficient to sustain the verdict as to Albert Tillman, but insufficient as to Emery Baldwin.

COUNSEL

Pope & Pope and Bert Fish, for plaintiffs in error.

J. B. Whitfield, Atty. Gen., for the State.

OPINION

COCKRELL, J.

An information for grand larceny was filed against Emery Baldwin, Albert Tillman, and one John Marshall. Marshall pleaded guilty. Baldwin and Tillman defended, but were found guilty, and sentenced to the state prison for five years.

The information, omitting formal parts, charges that the above-named persons, with force and arms, certain described oats, ground feed, and bran, of the total value of $20.50, of the property, goods, and chattels of one G. A. Dreka, did take, steal, and carry away.

The first assault upon the information arises out of the omission of the word 'feloniously.' Rev. St. 1892, § 2894, is as follows: 'It shall not be necessary to allege in an indictment that the offense charged is a felony, or felonious, or done feloniously, nor shall any indictment or complaint be quashed or deemed invalid by reason of the omission of the words 'felony,' 'felonious,' or 'feloniously." But counsel for the plaintiffs in error contend that these words were, before such legislation necessary to show technically the grade of the crime as a felony, and not a misdemeanor, and that the legislative dispensation went no further than to do away with such technicality, and that there was and is additional need of the use of the word 'feloniously' in the instant offense to embrace the 'criminal intent,' and that without this word that intent necessary to charge the offense, to single out the 'nature and cause of the accusation,' is lacking. It may be that in certain statutory offenses, where the act is innocent or criminal according to the motive that prompted it, the word 'feloniously' would be necessary to solve the ambiguity; yet in this case there can be no such difficulty. It is charged that the accused with force and arms did take, steal, and carry away the personal property of another. Webster defines 'steal' thus: 'To take and carry away feloniously; to take without right or leave and with intent to keep wrongfully; as to steal the personal goods of another.' We cannot say, therefore, in the language of section 2893, Rev. St. 1892, that the information 'is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.' A similar indictment was held good in Iowa, in the absence of such statute. See State v. Griffin, 79 Iowa, 568, 44 N.W. 813. See, also, Turnipseed v. State, 45 Fla. ----, 33 So. 851.

There is no merit in the contention that the information should allege the kind of money in which the property was valued. The charge is not for the larceny of 'money,' and the addition of the words 'lawful money of the United States' in the allegation of value is neither necessary nor usual. 2 Bish. New Crim. Proc. § 715.

It is contended that the information is bad in not stating where the property was, and in not stating the ownership of the property at the time of the alleged larceny. The grain is alleged to be of the property of one G. A. Dreka, and the crime is alleged to have taken place in Volusia county. This attack, it seems, is based on the omission of the words 'then and there being found,' sometimes found in such...