Burnes v. State
| Decision Date | 05 June 1925 |
| Citation | 89 Fla. 494,104 So. 783 |
| Parties | BURNES v. STATE. |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Jackson County; Amos Lewis, Judge.
I. W Berry and Daniel Burnes were convicted of breaking and entering a building, and Daniel Burnes brings error.
Affirmed.
Syllabus by the Court
Indorsement on indictment held sufficient. The following indorsement --is sufficient, where the record discloses that H B. Knapp was the foreman of the grand jury.
Sustaining demurrer to plea of autrefois acquit held proper; legal jeopardy does not attach until accused is placed on trial in court of competent jurisdiction, on indictment sufficient in form and substance to sustain conviction, and jury has been duly impaneled. Before arraignment upon an indictment charging defendants with breaking and entering a building with intent to commit a misdemeanor, defendants entered a plea of autrefois acquit, alleging that previously thereto they had been put on trial upon an indictment purporting to charge the same offense, but, after arraignment, impaneling of a jury, and taking evidence on behalf of the state, it was discovered that the indictment was fatally defective, in that there was an omission to allege ownership of the building broken and entered, whereupon the court ordered a mistrial. Demurrer to this plea was sustained. Held: No error, since legal jeopardy does not attach until one is placed on trial in a court of competent jurisdiction, upon an indictment sufficient in form and substance to sustain a judgment of conviction, and a jury has been duly impaneled to try and determine the issue made by plea thereto.
Indictment charging breaking and entering building with intent to commit misdemeanor, containing no allegation of ownership thereof is fatally defective. An indictment charging the breaking and entered of a building with intent to commit a misdemeanor, which contains no allegation of the ownership of the building, is fatally defective, and a motion in arrest of judgment thereon will be granted.
Allegation in indictment, that building broken and entered with intent to commit misdemeanor is property of estate of person deceased, held insufficient. An allegation in an indictment, that a building broken and entered with intent to commit a misdemeanor is the property of the estate of a person deceased, amounts to an omission to allege ownership of the building, and is insufficient.
Where prior indictment, on which accused was put on trial, was so defective in form and substance that valid judgment of conviction could not be entered upon it, there was no legal jeopardy. Where a prior indictment, upon which defendants were put on trial, was so defective in form or substance that a valid judgment of conviction could not be entered upon it, there was no legal jeopardy.
Carter & Solomon, of Marianna, for plaintiff in error.
Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.
The indictment in this case charges I. W. Berry and Daniel Burnes with breaking and entering a building. There was a verdict of guilty as charged, and judgment accordingly. Writ of error was taken by Daniel Burnes to review the judgment.
There are two assignments of error. The first presents the question of the alleged insufficient indorsement on the back of the indictment. So far as is necessary to present the question the indorsement is as follows:
The statute requires indictments to be signed by the prosecuting attorney 'and indorsed on the back by the foreman of the grand jury, when so found 'a true bill' * * * and signed by him.' Section 6062, Rev. Gen. Stat.
The contention in effect is that, since the words 'A True Bill' are interposed between the name of the foreman and the words 'Foreman of the Grand Jury,' the indorsement is defective. While not in the precise order usually occurring, this is not such a defect as to vitiate the indictment. The record discloses that H. B. Knapp was the foreman of the grand jury which returned the indictment. Considering the indorsement in connection with the record, it contains all that the statute requires. State v. Bowman, 103 Ind. 69, 2 N.E. 289; Whiting v. State, 48 Ohio St. 220, 27 N.E. 96.
The other assignment, though appearently involving a more serious question, is demonstratively not well taken.
Before arraignment, defendants interposed a plea of autrefois acquit, by which it is alleged, in substance, that they had previously thereto been put to trial upon an indictment purporting to charge the same offense as that charged in the present indictment, but, after arraignment and the impaneling of a jury to try the issue made, and the taking of evidence on behalf of the state, it was discovered by the court that the indictment was defective, in that the ownership of the building alleged to have been broken and entered by defendants was not alleged, whereupon the court over objections of defendants, ordered a...
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...in these cases be in accordance with applicable law. Compare State v. Turner, 168 So.2d 772 (Fla.App.1964); Burns v. State, 89 Fla. 494, 104 So. 783 (Fla.1925). It appears clear to me the Appellants were arbitrarily denied the right and opportunity to perfect their challenge to the Grand Ju......
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... ... transaction. And, if this be true, he certainly cannot ... maintain such a writ of prohibition as is here involved, on ... the ground of former jeopardy ... This ... court, speaking through Mr. Chief Justice West, in the ... opinion of the case of Burnes v. State, 89 Fla. 494, ... 104 So. 783, 784, said: ... 'Legal ... jeopardy attaches when one is placed on trial in a court of ... competent jurisdiction, upon an indictment sufficient in form ... and substance to sustain a judgment of conviction, and a jury ... has been duly ... ...
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...a subsequent prosecution for burglary against the defendants on remand in which the ownership element is properly pled. Burnes v. State, 89 Fla. 494, 104 So. 783 (1925). III In summary, the defendants' convictions and sentences for attempted burglary and receiving stolen property are affirm......
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...State ex rel. Larkins v. Lewis, Fla.1951, 54 So.2d 199; see also Kennick v. State, Fla.App.1958, 107 So.2d 59, citing Burnes v. State, 1925, 89 Fla. 494, 104 So. 783; 9 Fla.Jur., Criminal Law, § 199, p. 227; 21 Am.Jur.2d, Criminal Law, § 176, citing People v. Jackson, 20 N.Y.2d 440, 285 N.Y......