Clark v. State
| Decision Date | 04 May 1910 |
| Citation | 52 So. 518,59 Fla. 9 |
| Court | Florida Supreme Court |
| Parties | CLARK v. STATE. |
On Rehearing, June 9, 1910.
Error to Circuit Court, Columbia County; B. H. Palmer, Judge.
James Clark was convicted of larceny, and brings error. Affirmed.
Syllabus by the Court
Where an allegation in an indictment for larceny that a better description of the property is unknown is material, the point becomes an issue.
In a prosecution for larceny, the indictment, for the purpose of giving individuality to the act charged, should with reasonable certainty state the species or names and the number of the articles or things alleged to have been stolen so as to show that the things or articles are personal property and the subjects of larceny and that the proofs are of the same property, and to prevent embarrassment to the accused in making his defense and to protect him against a second prosecution for the same offense.
In an indictment for larceny, the description of the property required is only such as, in connection with other allegations, will, if sustained by proof, affirmatively show the defendant to be guilty, and will reasonably inform him of the facts charged and enable him to make defense. The limit in requiring certainty of description is that it need not be so minute or expanded as to impose unreasonable burdens upon the prosecution or otherwise defeat justice.
Where an indictment for larceny contains a sufficient description of the stolen property, an allegation that a better description is unknown is immaterial. Where the description is not sufficient to enable the defendant to make his defense, he should make proper application for a better description.
In a prosecution for larceny, where the indictment contains an apparently sufficient description of the stolen property, and also an allegation that a better description is unknown, it is not error to exclude testimony as to whether the grand jurors in fact knew a better description of the property.
Where some of the testimony of a witness is admissible, a motion to strike the whole of such testimony is too broad and properly denied.
An assignment of error based upon the refusal of the court to give a requested charge cannot be considered by the appellate court where the transcript does not show except by the motion for a new trial that such a charge was requested, as the motion is not self-supporting.
Where a requested charge is refused, it must be set out in the bill of exceptions with the refusal to give it and the exception taken thereto. The refusal to give a requested charge should be excepted to at the refusal, and cannot be excepted to in a motion for a new trial.
Where the fine imposed is less than the maximum for either grand or petit larceny, the defendant cannot complain that the value of the property did not justify the verdict and judgment some value being shown.
A presumption of guilt as a matter of law does not follow or flow from the unexplained possession of personal property recently stolen, but guilt in such a case may be inferred as a matter of fact if warranted by other circumstances.
Where there is evidence to support the verdict, and it does not appear that the jury were not governed by the evidence in their finding, or that reversible errors were committed at the trial, the judgment will be affirmed.
COUNSEL A. J. Henry and R. H. Chapman, for plaintiff in error.
Park Trammell, Atty. Gen., for the State.
The plaintiff in error was convicted in the circuit court for Columbia county for the larceny of 'one feather bed, 8 bed quilts, 6 pillows, 6 pillow shams, 6 vases, one lamp, one collar case and two collars, 10 table dishes, two pair window curtains, one rug, 3 pictures, two ladies' hats, one sugar dish and one cake plate, a better description and all of said property is to the grand jury unknown, and of the total value of one hundred and twenty-five dollars ($125) and of the goods and property of S. Dobson and Mattie Dobson.'
At the trial S. Dobson testified that he found certain of the goods in the defendant's house, and described the vases as being The dishes were described as 'glass dishes.' The pillows were described by the witness Mattie Dobson as 'feather pillows.'
After the state had put in its testimony, the defense recalled the witness S. Dobson and asked him if he testified before the grand jury that the pillows were feather pillows, and whether he gave to the grand jury the description of the vases and table dishes that he gave in this trial. The state objected to the questions as being immaterial. The objection was sustained and an exception noted. While the purpose of the questions was not stated, it may have been apparent that the purpose was to show to be untrue the allegation in the indictment that 'a better description of all of said property is to the grand jury unknown.'
Where an allegation in an indictment for larceny that a better description of the property is unknown is material, the point becomes an issue. See Enson v. State, 58 Fla. 37, 50 So. 948. But, where a sufficient description is given, an allegation that a better description is unknown is immaterial and may be regarded as surplusage. Carden v. State, 89 Ala. 130, 7 So. 801.
In a prosecution for larceny, the indictment, for the purpose of giving individuality to the act charged, should, with reasonable certainty, state the species or names and the number of the articles or things alleged to have been stolen so as to show that the things or articles are personal property and the subjects of larceny and that the proofs are of the same property, and to prevent embarrassment to the accused in making his defense, and to protect him against a second prosecution for the same offense. The description required is only such as, in connection with the other allegations, will affirmatively show the defendant to be guilty, is sustained by proof, and will reasonably inform him of the facts charged and enable him to make defense. The limit in requiring certainty of description is that it need not be so minute or expanded as to impose unreasonable burdens upon the prosecution or otherwise defeat justice. Bishop's New Crim. Proc. pars. 526, 699, 702, et seq.; 12 Ency. Pl. & Pr. 980. The names by which the articles are commonly known and the number of each being given in the indictment the property could be readily identified, and it does not appear that a more particular description than was given could have been reasonably required to protect the rights of the defendant. See Glover v. State, 22 Fla. 493; Mizell v. State, 38 Fla. 20, 20 So. 769; Porter v. State, 26 Fla. 56, 7 So. 145; 2 Bishop's New Crim. Proc. par. 700; State v. Curtis, 44 La. Ann. 320, 10 So. 784; State v. Parker, 47 Vt. 19;...
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