Benton v. State

• Decision Date: 11 May 1928
• Citation: 95 Fla. 919,117 So. 378
• Parties: BENTON v. STATE.
• Court: Florida Supreme Court

117 So. 378

95 Fla. 919

BENTON v. STATE.

Florida Supreme Court

May 11, 1928

Error to Circuit Court, Charlotte County; George W. Whitehurst Judge.

Berry Benton was convicted of the larceny of an animal, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Defendant pleading in bar and at subsequent term moving for continuance, waives irregularity available by plea in abatement; refusal to permit withdrawal of plea in bar after denial of continuance, in order to plead in abatement, held in trial court's discretion. When a defendant, at one term of the trial court enters a plea in bar, and at a subsequent term presents a motion for a continuance of the cause, and receives an adverse ruling thereon, he waives any irregularity that might have been taken advantage of by plea in abatement and it is in the discretion of the trial court to refuse to allow a withdrawal of the plea in bar in order to plead in abatement.

Refusal to strike testimony which, with other evidence, tends to prove material part of charge, is proper. A refusal of the trial court to strike the testimony of a witness is not error, if the testimony sought to be stricken, when taken with other evidence adduced, tends to prove a material part of the charge.

The evidence examined, and found sufficient to sustain the judgment of the trial court.

COUNSEL

E. M. Magaha, of Ft. Myers, for plaintiff in error.

Fred H Davis, Atty. Gen., for the State.

OPINION

HUTCHISON Circuit Judge.

The plaintiff in error, hereinafter referred to as the defendant, by writ of error, seeks a review of a judgment of the circuit court of Charlotte county, convicting and sentencing him for the crime of larceny of an animal.

The first assignment of error relates to the denial of the motion of the defendant to strike all of the testimony of the witness Harney Carlton relative to the ownership of a particular cow and yearling of Lykes Bros., Incorporated. The evidence of the witness Harney Carlton showed that the cow was marked and branded in the mark and brand, shown by other witnesses to be the mark and brand of Lykes Bros., Incorporated, and that said cow was the mother of the yearling charged in the indictment to have been stolen by the defendant. Such evidence was properly admitted to show ownership in Lykes Bros., Incorporated, of the animal alleged to have been stolen. The motion to strike the evidence was properly denied.

The second, third, and fifth assignments of error were abandoned by the defendant. The sixth assignment of error relates to the denial of the motion of the defendant to withdraw his plea in bar, of not guilty, and to be permitted to enter a plea in abatement to the indictment. This motion was submitted after the defendant had presented a motion for a continuance which the court below had denied.

By pleading in bar, the defendant waives any irregularity that might have been taken advantage of by plea in abatement. Green v. State, 60 Fla. 22, 53 So. 610; Hodge v. State, 29 Fla. 500, 10 So. 556; Shumake v. State, 90 Fla. 133, 105 So. 314.

It was in the discretion of the court to allow a plea of not guilty to be withdrawn in order to plead in abatement. Savage v. State, 18 Fla. 909; Adams v. State, 28 Fla. 511, 10 So. 106; Knight v. State, 44 Fla. 94, 32 So. 110.

The defendant entered his plea of not guilty at the October 1926, term of the court below, and at the spring term in March, 1927, filed his motion for a continuance. After the motion for the continuance was denied, the defendant filed his motion to withdraw the plea in bar and to be permitted to plead in abatement, which motion was denied by the court below. There was no error in denying the motion; no abuse of...