Daughtrey v. State

• Decision Date: 20 October 1903
• Citation: 35 So. 397,46 Fla. 109
• Parties: DAUGHTREY v. STATE.
• Court: Florida Supreme Court

35 So. 397

46 Fla. 109

DAUGHTREY v. STATE.

Florida Supreme Court, Division B.

October 20, 1903

Error to Circuit Court, De Soto County; Joseph B. Wall, Judge.

Buck Daughtrey was convicted of larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An accessory before or after the fact may be indicted separately from the principal either before or after the latter's conviction. If before, the indictment must aver the principal's guilt; if after, it may allege either the guilt of the principal, or that he has been convicted without averring his guilt.

2. By the common law and in this state the conviction of the principal is an essential prerequisite, except in certain cases, to the punishment of the accessory; and the conviction required includes the judgment of conviction, and not merely the verdict of a jury.

3. An indictment against an accessory which fails to allege the guilt of the principal, but merely that he was duly convicted by a jury at a specified term of the court, is fatally defective, in that it fails to show a judgment of conviction but merely a conviction by the verdict of a jury.

COUNSEL Sparkman & Carter and Wilson & Wilson, for plaintiff in error.

J. B Whitfield, Atty. Gen., for the State.

OPINION

CARTER P.J.

Plaintiff in error was indicted, tried, and convicted in the circuit court of De Soto county upon an indictment purporting to charge him as an accessory before as well as an accessory after the fact to the felony of larceny.

Several assignments of error question the regularity of the term of the court at which the indictment was found and the trial had, but these assignments depend upon the same facts as do similar questions raised in the case of Peeples v. State (decided at this term) 35 So. 223, and are disposed of by the decision in that case.

The indictment does not charge the guilt of the alleged principal, but merely that he had been convicted of the principal felony at a former term of the court. The allegation with respect to the conviction is 'that heretofore, to wit, at the fall term of the circuit court of the Sixth Judicial Circuit of the state of Florida sitting in and for the county of De Soto, aforesaid, for the year A. D. 1902, one Melvin Corbett was by the name of said Melvin Corbett duly convicted by a jury of said circuit court aforesaid, for that,' etc reciting the allegations of the indictment against Corbett. This is the form given by Mr. Bishop (Directions & Forms, § 117), except that the words 'by a jury of said circuit court aforesaid,' following the word 'convicted,' do not appear in Mr. Bishop's form. The defendant moved to quash the indictment, one ground being based upon the use of the qualifying words 'by a jury,' etc. The court denied the motion, and the second assignment of error questions the propriety of this ruling. Mr. Bishop states that the accessory may be indicted separately from the principal either before or after the latter's conviction. If before, the indictment must aver the principal's guilt. If after, the indictment may allege either the guilt of the principal or that he has been convicted without averring his guilt. Directions & Forms,§ 117; 2 New Crim. Proc. § 11. In this case the pleader adopted the latter course; i. e., alleging the conviction without averring the guilt of the principal. The allegation is that the principal was duly convicted 'by a jury,' etc. Is this allegation sufficient, notwithstanding the use of the qualifying words 'by a jury,' etc.? In order to determine this it will be...