Charles v. State

• Decision Date: 22 October 1895
• Citation: 36 Fla. 691,18 So. 369
• Parties: CHARLES v. STATE.
• Court: Florida Supreme Court

18 So. 369

36 Fla. 691

CHARLES v. STATE.

Florida Supreme Court

October 22, 1895

Error to circuit court, Columbia county; John F. White, Judge.

Wiley Charles, having been convicted of breaking and entering a building in the nighttime, and stealing therefrom, brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. It is not necessary in an indictment under our statute for breaking and entering a building in the nighttime with intent to commit a misdemeanor, by stealing, to allege that the property intended to be stolen was actually in the building at the time of the breaking and entry thereof.

2. An assignment of error is that the court erred in refusing to require fuller answers of a state's witness (whose name is given) to the questions propounded by defendant's counsel on cross-examination. Neither the assignment nor brief states the questions upon which the ruling was made and no page of the record is designated where the ruling complained of can be found. Under these circumstances, it is not the duty of the court to search the record to ascertain what questions and answers and rulings are intended to be presented by the assignment and brief.

3. The defense in a criminal case charging the defendant with breaking and entering a building with intent to steal a mule was that the breaking and entry were made with no criminal intent, but in good faith to take possession of the mule believing him to be the property of the defendant. The state read in rebuttal the record of a proceeding in replevin for the mule in a justice of the peace court, begun by defendant against the person in possession of the animal. From this record it appeared that the case was dismissed for want of prosecution. The defendant, in his statement before the jury had given a parol statement about the same proceeding. The record was objected to as being irrelevant and immaterial. Held, that the objection was properly overruled; that evidence tending to prove a voluntary abandonment by the defendant of his suit for possession of the mule tended to contradict his statement of good faith and honest belief that it was his property.

4. Where a question is involved in a criminal case as to the ownership of property which the defendant is charged with an intent to steal, evidence tending to show that a person alleged in the indictment to be the owner of the property and admitted by the defendant to have formerly been the owner of the same, was induced to part with the possession by fraudulent misrepresentations, and that he would not have parted with the same except for such misrepresentations, is admissible as tending to show that the mule still remained the property of the former owner, unless the defendant were a bona fide purchaser for value, without notice of the fraud.

5. The court charged the jury as follows: 'In your efforts to come to a correct verdict, you may first consider whether, from the evidence, the building or stable was the property of J. R. Livingston, was broken and entered as alleged in the indictment. If, from the evidence, you are satisfied that it was closed on the night of the 20th February, 1895, and that the mule described in the indictment was shut up in said building, and should find that the door of said building was opened by the defendant during that night, and the said building was then and there entered by him without the consent and against the will of J. R. Livingston, then the opening of the said door and the entering of the said building was a breaking and entering unlawfully, within the meaning of the law. And should you, from the evidence, be further thus satisfied that the mule described in the indictment was of some value, and was then and there the property of J. R. Livingston, and that said mule was then and there, on the night of the 20th February, 1895, feloniously taken out of said building by the defendant with intent to convert it to his own use, without the consent and against the will of the said owner, you should find the defendant guilty.' This instruction was followed by proper instructions as to reasonable doubt of the defendant's guilt. Held, that this charge was not liable to mislead the jury, or give them the idea that the breaking and entry alone, without the criminal intent, was a violation of the statute.

6. The court charged the jury, among other matters, that it was a question for them to decide whether 'the defendant in good faith honestly believed the mule to be his property, as a reasonable and prudent man.' This charge was erroneous. The court should not have limited the defendant to such good faith and honest belief as would be entertained by a reasonable and prudent man. The law deals only with the intention, and a man is not to be punished when he has no guilty intention, and acts in good faith and with an honest belief, although he may not have acted as a reasonable and prudent man in having such faith and belief; but the belief under which he is acting must be really honest and in good faith, and not a mere sham or pretense.

COUNSEL

A. J. Henry, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

LIDDON J.

The plaintiff in error was convicted in the circuit court of Columbia county upon an indictment charging that he 'on 20th day of February, A. D. 1895, at and in the county, circuit, and state aforesaid, with force and arms, unlawfully and feloniously did then and there, in the nighttime of said day, break and enter a building then and there situate, to wit, a stable, the property of J. R. Livingston, with intent to commit a misdemeanor, to wit, to take, steal, and carry away, and convert to his own use, one dark day mule then and there being found, of the value of fifty dollars, of the personal property of J. R. Livingston, without the consent of the owner thereof, to wit, the said J. R. Livingston.'

A motion to quash the indictment upon the grounds, among others, of vagueness and insufficiency, was overruled, and such ruling is assigned as error. The argument made upon this point is that the indictment should have specifically alleged that the mule was in the stable alleged to have been broken and entered at the time of such breaking and entry. The indictment was found under section 2438 of the Revised Statutes of Florida. The statute denounces a penalty upon whoever breaks and enters, or enters without breaking, in the nighttime or in the daytime, any building, ect., with intent to commit a misdemeanor. The breaking and entry with the criminal intent constitute the gist of the offense. The intent cannot, however, be laid in mere general words. It is not sufficient to say that the defendant broke and entered with intent to commit a misdemeanor, but the kind of misdemeanor must be specified. The specification need not be as minute as would be necessary in an indictment for the commission of the misdemeanor. Bish. Cr. Proc. § 142. This court has held that it is not even necessary in an indictment of this character to specify what goods and chattels were intended to be stolen. Jones v. State, 18 Fla. 889. If it was not necessary to specifically describe the goods intended to be stolen, the description of the offense in the indictment was fuller and more specific than it needed to be. If a description of the property intended to be stolen was unnecessary, then it follows, as a matter of course, that it is not necessary to designate the exact situation of the property, which it was not necessary to name at all. Upon principle we cannot see how the question as to whether the property was or was not in the building broken and entered affects the guilt of the defendant. Suppose that, in apprehension of an effort to steal the property, the same had been removed from the building an hour or two before the breaking and entry, and the defendant, not knowing of such removal, breaks and enters with the criminal intent to steal the property. His guilt under such circumstances would be just as complete as if the property were in the building at the time of the breaking and entry. In this matter we fully agree with the view of Chief Justice Shaw, expressed in Josslyn v. Com., 6 Metc. (Mass.) 236, as follows: 'Nor is it necessary to describe the goods intended to be stolen. A general intent to steal goods would complete the offense; and therefore the averment of such intent, without more, is sufficient to charge it. And the rule would be the same if in fact there were no goods, or no goods of Fogg, in the shop. The crime was complete by the breaking and entering with an intent to steal goods.' The motion to quash the indictment was properly overruled.

The second assignment of error is that the court erred in refusing to require the state's witness, J. R. Livingston, to answer more fully the questions asked him on cross-examination by defendant's attorney. Neither the assignment nor the brief of counsel tells us what the questions were which the court refused to require the witness Livingston to answer more fully. No page of the record is designated where the rulings complained of may be found. Under these circumstances, we do not regard it as our duty to search the record to ascertain what questions and answers, and rulings thereon, are intended to be presented by the assignment and the brief, and we decline so to do. Railway Co. v. Griffin, 33 Fla. 602, 15 So. 336; Thomas v. State, 36 Fla. ----, 18 So. 331.

The third assignment of error is that the court erred in admitting the record of Frank De Ferro, a justice of the peace. This record was of a proceeding in which the defendant brought an action of replevin against Livingston, the alleged owner of the same, for...