Davis v. State

• Decision Date: 30 July 1903
• Citation: 35 So. 76,46 Fla. 137
• Parties: DAVIS v. STATE.
• Court: Florida Supreme Court

35 So. 76

46 Fla. 137

DAVIS v. STATE.

Florida Supreme Court, Division B.

July 30, 1903

Error to Circuit Court, Dade County, Minor S. Jones, Judge.

Charlie Davis was indicted for breaking into a dwelling house with intent to commit larceny, and, on conviction, brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An indictment under chapter 4405, p. 167, Acts 1895, for the breaking and entering of a dwelling with intent to commit a felony, which charges in the same count that the accused was then and there armed with a dangerous weapon, and made an actual assault upon a person lawfully in such dwelling, is not duplicitous; nor is such an indictment bad, on motion to quash, even though the allegations with respect to the dangerous weapon are insufficient, if the allegations with respect to the assault are not defective.

2. Under chapter 4736, p. 125, Acts 1899, circuit courts have power to direct the summoning from the body of the county of jurors to form a grand jury, where the grand jury in attendance has been discharged by reason of irregularities in summoning its members. Such discharge is a quashal of the panel, within the meaning of that statute.

3. Testimony as to the action of dogs in following the trial of a supposed criminal from the scene of a crime is admissible in evidence, provided such preliminary proof be given of the qualities and training of the dogs as to show that reliance may reasonably be placed upon their accuracy in following the trail of a human being.

4. It is not error to refuse to give instructions substantially covered by the general charge of the court.

5. It is error to refuse a request correctly defining the term 'reasonable doubt,' where no definition thereof is given in the general charge of the court.

6. It is not error to refuse instructions not applicable to any evidence in the case.

COUNSEL M. D. Price, for plaintiff in error.

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

OPINION

COCKRELL J.

Charlie Davis was indicted in one count for breaking and entering a dwelling house with intent to commit the felony of larceny. The indictment charged that at the time of such breaking and entering the defendant was armed with a dangerous weapon, and also that he made an actual assault upon a person who was lawfully in said dwelling. He was convicted and sentenced to life imprisonment.

A motion to quash the indictment was overruled. The grounds of the motion insisted on here are that the indictment is duplicitous, and that the weapon is not so described as to make it, as matter of law, a dangerous weapon. Under the statute (chapter 4405, p. 167, Laws 1895), the maximum penalty for burglary is fixed at imprisonment in the State Prison for life, if the burglar 'be armed with a dangerous weapon at the time of breaking and entering, or if he arm himself within such building, or if he make an actual assault upon any person lawfully therein,' while a lighter penalty is inflicted in the absence of such arming and assault. The arming and assault are each mere aggravations of the offense. Either or both, when committed by one while engaged in committing the same burglary, subject the offender to the same punishment. They are distinct acts but connected with the same general offense. Under the statute it is permissible for the indictment to allege in a single count that the defendant did as many of the aggravating acts as the pleader chooses, and it will not be double, but will be established at the trial by the proof of any one or all of them. Being guilty of all, he violates the statute but once, yet he violates the statute equally when he is guilty of but one. Bradley v. State, 20 Fla. 738; Smith v State, 40 Fla. 203, 23 So. 854; 1 Bish. New Crim. Proc. § 436.

On the motion to quash we need not consider the sufficiency of the allegation as to the dangerous character of the weapon used. Should the terms used be insufficient to show a breaking and entering while armed with a dangerous weapon, the indictment would still be good, as charging the breaking and entering, and an actual assault while in the commission of the burglary, which is a complete charge of the crime. The motion to quash was properly overruled.

The defendant pleaded in abatement as follows: 'That on the 9th day of February, A. D. 1903, in the circuit court in and for Dade county, Florida, sitting in an adjourned session from the fall term thereof, A. D. 1902, a grand jury composed of seventeen jurors drawn from the box by the clerk of the circuit court on January 27, 1903, after due notice as required by law, was impaneled and sworn by the court; that on the 12th day of February, A. D. 1903, said grand jury were discharged by the court on the grounds that said grand jury were not drawn from the box fifteen days before court; that immediately thereafter, to wit, a new grand jury, composed of sixteen members of the first grand jury, and two new ones who were bystanders summoned by the sheriff, was duly impaneled and sworn; that only nineteen jurors were summoned on the second venire, out of which eighteen were accepted and sworn as jurymen; that each of said grand juries were summoned, impaneled and sworn to diligently inquire and true presentment make to any and all matters which might be brought to their attention during the February term of court; that the names of the jurors composing the second or last grand jury were not placed in the box or drawn therefrom, neither was any legal...