Driggers v. State

• Decision Date: 11 April 1939
• Citation: 188 So. 118,137 Fla. 182
• Parties: DRIGGERS v. STATE.
• Court: Florida Supreme Court

188 So. 118

137 Fla. 182

DRIGGERS v. STATE.

Florida Supreme Court, Division A.

April 11, 1939

Rehearing Denied May 19, 1939.

Error to Circuit Court, Lee County; W. T. Harrison, Judge.

Solon Driggers was convicted of stealing a calf, and he brings error.

Reversed with directions.

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood and Thomas J Ellis, Asst. Attys, Gen., for defendant in error.

OPINION

BUFORD Justice.

On writ of error we review judgment of conviction under an information charging that the accused 'on the 4th day of September in the year of our Lord one thousand nine hundred and thirty-seven, in the county and State aforesaid, did unlawfully steal, take and carry away, one animal of the bovine species, to-wit: a calf, of the property of J. H Daughtry, with the intent then and there to permanently deprive the said owner of the use and possession thereof; contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida.'

The record shows that the accused upon being arraigned filed plea in bar as follows:

Comes now Eulric Lee Williams and Solon Driggers in their own proper persons and having heard the information read, says that the State of Florida ought not to further prosecute the same against them because they say that heretofore on the 11th day of October 1937, Roy D. Stubbs, States Attorney 12th Judicial Circuit of Florida, prosecuting for the State of Florida in Lee County under oath, information made that these defendants, Eulric Lee Williams and Solon Driggers, offended against the Law of the State of Florida as is set forth in the certified copy of the information hereto attached and made a part hereof as fully and completely as set out herein verbatim, pursuant to which a capias was issued out of the aforesaid Court by the Clerk thereof, that the said Eulric Lee Williams and Solon Driggers might be arrested and held for trial on said information which information was duly signed and sworn to by the said Roy D. Stubbs, then duly constituted States Attorney 12th Judicial Circuit of Florida in and for Lee County, Florida, as aforesaid, to which information the said Eulric Lee Williams and Solon Driggers plead not guilty after arrest on the 1st day of November 1973, and the said State of Florida joined issue on said plea and the jury thereupon duly empaneled and sworn to try the issues under their oath did say that the said Eulric Lee Williams and Solon Driggers were not guilty of the offense in said information laid to their charges certified copy of said verdict hereto attached; whereupon it was considered by the court that the said Eulric Lee Williams and Solon Driggers be discharged and the said jury discharged from the further consideration thereof, as by the record thereof more fully and at large appears, which said judgment still remains in full force and the said Eulric Lee Williams and Solon Driggers avers that in said cause said Court had jurisdiction of the subject matter and of their persons and that they are the same individuals, Eulric Lee Williams and Solon Driggers, who were the defendants in the information cited in this plea, and acquitted as aforesaid, and that they, the said Eulric Lee Williams and Solon Driggers, who were the defendants in the information cited in this plea are not different persons and that the offense in said last mentioned information, copy of which is made a part of this plea, and the one charged in the information to which this plea is pleaded are one and the same offense and not divers and different offenses and that the one cow, the property of J. H. Daughtry, alias Buck Daughtry, alleged in the information cited in this plea is identically the same one animal of the bovine species to-wit, a calf, of the property of J. H. Daughtry alleged in the information to which this plea is pleaded although described differently and that the information to which the said Eulric Lee Williams and Solon Driggers now called upon to plead is for one and the same offense charged in the first information mentioned, and of which they were acquitted, all of which the said Eulric Lee Williams and Solon Driggers are ready to verify.

'Wherefore they pray judgment and that by the court here they may be dismissed and discharged from the premises in the present information specified and contained.'

Demurrer was interposed to the plea, which demurrer was sustained. Thereupon defendant pleaded not gulity and on trial was convicted.

A number of questions are raised and insisted upon for the reversal of the judgment, but we think it is only necessary for us to consider the first question which challenges the correctness of the ruling of the court in sustaining the demurrer to the plea in abatement.

The allegations of the plea are entirely sufficient to show that the defendant was arraigned upon an information charging him with the identical offense that had theretofore been charged against him and upon which charge he had been put upon trial and was acquitted. These allegations meet the rule enunciated in Tufts v. State, 41 Fla. 663, 27 So. 218; Pottinger v. State, 122 Fla. 405, 165 So. 276. In the latter case we held:

'Common-law and constitutional prohibition against double jeopardy refers, not to same offense eo nomine, but to same crime, transaction, or omission; test being whether defendant has been twice in jeopardy and not whether he had been tried before for same act.' (Italics supplied.) See Southworth v. State, 98 Fla. 1184, 125 So. 345; Wallace v. State, 41 Fla. 547, 26 So. 713.

It is contended by the defendant in error that because the first information described the animal alleged to have been stolen as a 'cow' and the later information described the property as a 'calf' the same evidence would not be required to convict under the latter information that would have been required to convict...