Davis v. State

• Decision Date: 21 May 1924
• Citation: 87 Fla. 505,100 So. 739
• Parties: DAVIS v. STATE.
• Court: Florida Supreme Court

100 So. 739

87 Fla. 505

DAVIS v. STATE.

Florida Supreme Court, Division A.

May 21, 1924

Rehearing Denied June 18, 1924.

Error to Circuit Court, Polk County; John S. Edwards, Judge.

Harold Davis was convicted of receiving stolen property, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Writ of error operates as supersedeas on giving of statutory bond. When a writ of error is taken to a judgment in a criminal case, it is the writ which operates as a supersedeas upon a bond being given as the statute requires.

Assignments of error not argued will not be considered on appeal. When there are several assignments of error and only one is argued, those which are argued will not be considered by the appellate court.

Defendant not entitled, as of right, to instruction to acquit. The defendant is not entitled, as of right, to an instruction to the jury to return a verdict of acquittal.

Evidence held sufficient to sustain conviction. Evidence examined and found sufficient to support the verdict of receiving stolen property knowing it to have been stolen.

COUNSEL

Wilson & Boswell, of Bartow, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

In October, 1921, the plaintiff in error was indicted for the larceny of a Ford automobile, the property of Mrs. W. O Pearce, and for receiving the stolen machine knowing the same to have been stolen. The date of the alleged theft was August 14, 1921. The defendant was put upon trial on November 23, 1921. Upon motion the state attorney elected to prosecute upon the second count, which charged the defendant with receiving the stolen property knowing it to have been stolen. There was a verdict of guilty as charged in the second count. The defendant was sentenced on the 29th of November, 1921, according to the record, but according to the bill of exceptions he was sentenced on the 25th of November.

Ninety days were allowed in which to make up and tender a bill of exceptions. A motion for a new trial was overruled on November 29, 1921. The bill of exceptions was presented on February 22, 1922, and signed on the 28th of that month. The bill of exceptions is not in narrative form; the testimony being set out in the form of questions and answers under the certificate of the judge that it was necessary to be presented in that form to be clearly understood. It contains a large proportion of irrelevant and immaterial statements of fact.

The record proper states that the motion for a new trial was overruled and sentenced imposed on the 29th of November. The bill of exceptions states that the motion for a new trial was overruled and supersedeas bond fixed at the sum of $5,000 on November 25, 1921. The supersedeas bond was given and approved on the last-mentioned date.

On the 15th of March, 1924, more than two years and four months after the trial and sentence and the filing of the 'supersedeas bond,' the attorneys for the defendant filed their praecipe for a writ of error, which was issued upon that date and returnable to this court upon the 21st of April, 1924.

In approving the supersedeas bond the statute (section 6152, Revised General Statutes), was ignored, in that the affidavits of the sureties did not contain any description of their real property.

It is the writ of error and not the bond which operates as a supersedeas, although a bond is required to be given in conformity with the provisions of the statute before the writ of error so operates. See sections 6151, 6152, Revised General Statutes.

The record does not show whether during the period of two years and four months which elapsed between the date of the sentence and the suing out of the writ of error the defendant has been in confinement or not. If he has not, that fact is a matter for consideration by the executive department and not the judicial.

The motion for a new trial contained many grounds, and so does the assignment of errors relied upon for the reversal of the judgment, but only one is discussed in the brief of counsel for the plaintiff in error, and that one is that the verdict was contrary to the evidence.

It is therefore the only one which will be considered. See Williams v. State, 25 Fla. 734, 6 Sough. 831, 6 L R. A. 821; Holland v. State, 39 Fla. 178, 22 So 298; Lamb v. State, 50 Fla. 106, 38 So. 906; Thomas v. State, 36 Fla. 109, 18 So. 331; Mathis v. State, 45 Fla. 46, 34 So. 287.

There were no errors in the trial of the case, which were the subject of any assignment not discussed, so glaring that this court would be required under the rule to reverse the case sua sponte.

It is unnecessary to discuss the evidence in full. The evidence for the state tended to show that Mrs. Pearce was the owner of an automobile; the engine number was 4891886. It was of the type called a Ford. It was stolen on Sunday night, August 14 1921, and later, on about the 31st of August, it was found in the defendant's possession. It was identified as the property of Mrs. Pearce, although the top and...