Croft v. State

• Decision Date: 21 March 1933
• Citation: 109 Fla. 188,146 So. 649
• Parties: CROFT v. STATE.
• Court: Florida Supreme Court

146 So. 649

109 Fla. 188

CROFT v. STATE.

Florida Supreme Court

March 21, 1933

En Banc.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Elbert Croft was convicted of robbery, and he brings error.

Reversed.

See also, 144 So. 663.

BUFORD J., dissenting.

COUNSEL George W. Dayton, of Dade City, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

PER CURIAM.

The plaintiff in error was indicted, tried, and convicted in the circuit court of Pinellas county, Fla., on an indictment charging robbery. The indictment charges:

'That Elbert Croft and Carl Sullivan, of the County of Pinellas and State of Florida, on the 19th day of November in the year of our Lord, one thousand nine hundred and thirty-one in the County and State aforesaid being then and there armed with a dangerous weapon, or weapons, to-wit: a pistol, or pistols, a more particular description is to the Grand Jurors unknown, and with the intent, if resisted, to kill or maim one Irving Trask, and putting the said Irving Trask in fear, they, the said Elbert Croft and Carl Sullivan did make an assault upon the said Irving Trask, and did then and there feloniously rob steal and take away from the person or custody of the said Irving Trask Nine Hundred and Eighty Seven ($987.00) Dollars, lawful money of the United States of America, of the value of Nine Hundred and Eighty-Seven ($987.00) Dollars, a more particular description of said money being to the Grand Jurors unknown, of the money, goods and chattels of the First State Bank of Tampa Shores, the said Irving Trask being then and there the agent and servant of the said First State Bank of Tampa Shores in charge of the said money, goods and chattels of the said First State Bank of Tampa Shores, aforesaid.'

The defendant filed a motion to quash the indictment. This motion to quash raised two questions we think material: First, the indictment did not sufficiently allege the ownership of the property, and, second, that the indictment was duplicitous in that it charged two crimes, in the alternative.

As to the first question. The motion to quash complains that the indictment does not allege that the First State Bank of Tampa Shores, the alleged owner of the property charged to have been taken, was a corporation, or, if a partnership, the individual names of the partners. In the case of Underhill v. State, 81 Fla. 234, 87 So. 637, this court held that 'at common law it is not sufficient to allege the ownership of stolen property in a partnership without giving the names of the partners.' In the case of Pippin et al. v. State, 102 Fla. 1124, 136 So. 883, this court held that 'an indictment for robbery should state the name of the owner of the property taken, or that the owner is unknown.'

It is true that section 6115, Compiled General Laws of Florida 1927, provides: 'All banks not organized and transacting business under the laws of this State, or under the national banking laws of the United States, and all persons or corporations doing the business of bankers, brokers or savings institutions, are prohibited from using or continuing to use the word 'bank' or any other title which may imply that it is an incorporated banking institution as a part or the whole of the name or title of such bank, corporation, firm or partnership; except that individuals or firms who may be carrying on the business of banking may continue the use of such name or title, provided they append to such name or title wherever used the words 'not incorporated,' in letters as plain and conspicuous as those used in the name or title itself, and any violation of this prohibition shall subject the party chargeable therewith to a penalty of fifty dollars for each day during which it is permitted or repeated, to be recovered by the State in any court of compertent jurisdiction.' We think that the statute just quoted would raise the presumption that the First State Bank of Tampa Shores, the alleged owner of the property charged to have been taken, was a banking corporation under the laws of the state of Florida. This could only be a presumption. In charging a felony presumptions are not generally favored, unless such presumptions are especially provided by statute. In this case the state failed to prove that the First State Bank of Tampa Shores was a...