O'brien v. State

• Decision Date: 08 June 1908
• Citation: 55 Fla. 146,47 So. 11
• Court: Florida Supreme Court
• Parties: O'BRIEN v. STATE.

47 So. 11

55 Fla. 146

O'BRIEN v. STATE.

Florida Supreme Court, Division B.

June 8, 1908

Headnotes Filed July 11, 1908.

Error to Criminal Court of Record, Dade County; W. I. Metcalf Judge.

Fred O'Brien was convicted of grand larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

It is not the province of a demurrer to set out the facts. It involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of pleadings which arise on the face thereof.

The plea of autrefois convict consists partly of matter of record and partly of matter of fact. The matter of record is the former indictment and conviction, and the conviction here meant includes the sentence or judgment of conviction, and not merely the verdict of the jury.

Where the plea of autrefois convict fails to state any reason why the defendant could not again be tried for said offense, it may be treated as a nullity, and stricken out on motion.

COUNSEL Price & Rand, for plaintiff in error.

OPINION

PARKHILL J.

The plaintiff in error, Fred O'Brien, was prosecuted in the criminal court of record for Dade county for grand larceny. He was tried, convicted and sentenced to the state prison for three years, and seeks relief here by writ of error.

It is contended that the court erred in sustaining a demurrer to the plea of autrefois convict. The demurrer is as follows:

'Now comes the state of Florida, by H. Pierre Branning, its solicitor of the criminal court of record of Dade county Florida, and demurs to the plea of the defendant Fred O'Brien, filed in the above-styled cause and for grounds of demurrer says it is bad in substance.

'H. Pierre Branning, County Solicitor.

'Substantial matters of law to be argued. Where a defendant has been convicted and a new trial granted him, the prosecution may, with the court's consent, enter a nolle prosequi without prejudice to a new indictment or information.'

It is not the province of a demurrer to set out the facts. It involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of pleadings which arise on the face thereof. 6 Ency. Pl. & Pr. 297; State ex rel. Garrison v. Commissioners of Putnam Co., 23 Fla. 632, 3 So. 164.

The plea does not allege that the former conviction of the defendant was set aside, a new trial granted, and a nolle prosequi entered. If, therefore, the demurrer is to be understood as setting up these facts, they cannot be considered. If the plea set up these facts, it would furnish no sufficient defense against the further prosecution of the defendant. In Gibson v. State, 26 Fla. 109, 7 So. 376, this court held: 'Where there has been trial for an offense and a verdict of guilty, and on motion of the defendant the court arrests the judgment, or grants a new trial, such defendant has not been in the jeopardy which forbids a second trial, whether upon the same indictment or a new one. The jeopardy ceased upon the arrest or grant of a new trial; there being no right of appeal for the prosecution in this state.' The demurrer, therefore, announces a correct proposition of law. The plea shows that the jury rendered a verdict of guilty, and sets out the verdict; but the plea fails to show a sentence or a judgment.

The plea of autrefois convict consists partly of matter of record and partly of matter of fact. The matter of record is the former indictment and conviction, and the conviction here meant includes the sentence or judgment of conviction, and not merely the verdict of the jury. State ex rel. Owens v. Barnes, 24 Fla. 153, 4 [55 Fla. 149] South. 560; Daughtrey v. State, 46 Fla. 109, 35 So. 397, 110 Am St. Rep. 84; Commonwealth v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699. The plea of autrefois convict, therefore, must set forth the indictment, the verdict of the jury, and the judgment thereon. 9 Ency. Pl. & Pr. 635; State v. Hankins, 136 N.C. 621, 48 S.E. 593; Washington v. State, 35...