Carlton v. State
| Decision Date | 13 January 1933 |
| Citation | 145 So. 249,108 Fla. 34 |
| Parties | CARLTON v. STATE. |
| Court | Florida Supreme Court |
En Banc.
Error to Criminal Court of Record, Hillsborough County; W. Raleigh Petteway, Judge.
Ernest Carlton was convicted of burglary of a dwelling house, and he brings error.
Reversed and new trial awarded.
COUNSEL Robert H. Givens, Jr., of Tampa, for plaintiff in error.
Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
Ernest Carlton, the plaintiff in error, was informed against in the criminal court of record of Hillsborough county; the accusation being set forth in three separate counts.
The first count charged in substance that the defendant did unlawfully and feloniously break and enter a certain described dwelling house, the property of Harold Gooding with intent to commit a felony, to wit, grand larceny. The second count charged grand larceny of specifically described personal property on the same date, from the same person as that described in the first count. The third count charged the defendant with buying, receiving, and concealing the same personal property, on the same day, as that described in the second count, knowing it to have been theretofore stolen and carried away. Defendant was found guilty on the first and second counts, and sentenced on the first count to fifteen years in state prison. Sentence on the other count was deferred. Writ of error was taken to the sentence imposed.
There was no error in overruling the demurrer and motion to quash the first count, the allegations of that count being in the language of the statute (section 7216, Comp. Gen. Laws section 5115 Rev. Gen. St.) and being sufficient to apprise the defendant of the accusation against him and to protect him from a second prosecution for the same offense. See section 8369, Comp. Gen. Laws, section 6064, Rev. Gen. St.
The second count of the information charged the defendant with having stolen certain described property, while the third count charged the defendant with having bought, received, concealed, and aided in the concealment of the identical property described in the second count.
After the state had closed its case in chief, and the defendant's motion for a directed verdict had been denied, the defendant moved the court to require the prosecution to elect between the second and third counts because of their repugnancy. The motion was denied and exception to the ruling duly taken.
In Griswold v. State, 77 Fla. 505, 82 So. 44, 45, this court said:
'If the indictment contains two counts, which are inconsistent or charge inconsistent offenses, a motion to elect upon which count the defendant shall be tried is appropriate.'
Being appropriate, as this court has said, a motion to require the state to elect between two inconsistent counts should be granted, when two counts of an information are entirely repugnant but have been permitted to stand in order to meet evidence which may possibly be adduced at the trial. To deny such motion when properly and timely made will be held reversible error warranting a new trial, when it appears that the jury has found the defendant guilty on one of the two inconsistent counts.
The judgment of conviction to which the writ of error was taken is based solely on the first count which charged burglary of a dwelling house. The court, on the trial, charged the jury in general terms as follows:
'The Court also charges you that it is the law that a person found in possession of recently stolen property is presumed under the law to be the thief in the absence of explanation; that is, unless directly thereafter he gives a reasonable and credible account of how he came into possession of such recently stolen property or such an account as raises a reasonable doubt in the minds of the...
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Tidwell v. State
...the state to elect upon which of the two counts it will stand for conviction. Mayers v. State, 126 Fla. 640, 171 So. 824; Carlton v. State, 108 Fla. 34, 145 So. 249. See also Pearce v. State, Fla., 196 So. 685, this term. When is a motion requiring election properly and timely made? In the ......
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Evans v. State
... ... The improbability of the explanation does not ... remove it from his or their consideration; nor on the other ... hand does its plausibility, although uncontradicted by the ... state, require an acquittal.' 36 C.J. 921 ... See ... also 32 Am.Jur. § 149, pp. 1061-1063; Carlton v ... State, 108 Fla. 249, 145 So. 249 ... In ... accordance with the foregoing, we do not agree with the Court ... of Appeals in holding that the defendant was entitled to ... receive the affirmative charge. The opinion of the Court of ... Appeals indicates that there are other ... ...
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Hayward v. State
...arising therefrom is purely a matter of fact to be passed upon by a jury. See Tidwell v. State, 143 Fla. 397, 196 So. 837; Carlton v. State, 108 Fla. 34, 145 So. 249; Kilkrease v. State, 96 Fla. 264, 117 So. Bellamy v. State, 35 Fla. 242, 17 So. 560. Witnesses for the State testified as to ......
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Adams v. State
... ... See Mayers v. State, 126 Fla ... 640, 171 So. 824; Branch v. State, 76 Fla. 558, 80 ... So. 482; Presley v. State, 61 Fla. 46, 54 So. 367; ... Gantling v. State, 40 Fla. 237, 23 So. 857; ... Eggart v. State, 40 Fla. 527, 25 So. 144. Counsel ... for plaintiff in error relied upon Carlton v. State, ... 108 Fla. 34, 145 So. 249; Griswold v. State, 77 Fla ... 505, 82 So. 44 ... [189 So. 393] ... It will be observed that Counts 1 and 3, supra, are not ... repugnant or inconsistent like the informations appearing in ... the cases cited by counsel supra ... In ... ...