Duke v. State

• Court: United States State Supreme Court of Florida
• Citation: 185 So. 422,134 Fla. 456
• Parties: DUKE v. STATE.
• Decision Date: 17 June 1938

185 So. 422

134 Fla. 456

DUKE
v.
STATE.

Florida Supreme Court

June 17, 1938

Rehearing Denied July 8, 1938.

On Rehearing Nov. 9, 1938.

Error to Circuit Court, Lee County; George W. Whitehurst, Judge.

Harold Duke was convicted of burning a dwelling house, and he brings error.

Affirmed.

BUFORD, J., dissenting.

On Rehearing.

COUNSEL [185 So. 423]

[134 Fla. 865] W. D. Bell, of Arcadia, for plaintiff in error.

Cary D. Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for the State.

OPINION

PER CURIAM.

In this cause Mr. Chief Justice ELLIS, Mr. Justice BUFORD and Mr. Justice CHAPMAN are of the opinion that the judgment of the Circuit Court herein should [134 Fla. 866] be affirmed, while Mr. Justice WHITFIELD, Mr. Justice TERRELL and Mr. Justice BROWN are of the opinion that the said judgment should be reversed for a new trial. When the members of the Supreme Court, sitting six members in a body and after full consultation, are permanently and equally divided in opinion as to whether the judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the judgment should be affirmed, therefore it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the judgment of the Circuit Court in this cause be and the same is hereby affirmed.

Affirmed.

ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, JJ., concur.

On Merits.

PER CURIAM.

The information herein contained three counts charging that the defendant (1) 'did unlawfully, wilfully and maliciously set fire to and burn a certain dwelling house * * * the property of Paul Duke'; (2) 'did unlawfully, maliciously and wilfully set fire to and burn that certain dwelling house * * * the property of Cleo Duke'; (3) 'did unlawfully, wilfully and maliciously set fire to and burn that certain dwelling house * * * the property of Harold Duke'. There is no allegation in any count as to the occupancy of the dwelling house alleged to have been burned.

A motion was made to quash the information upon grounds going to the validity of the statute defining the offense, as well as to the sufficiency of the information as a pleading.

Chapter 15603, Acts of 1931, Ex.Sess., is as follows:

'An Act to Define and Punish the Offense of Unlawfully Burning Setting Fire to, or Attempting to Burn or Set [134 Fla 867] Fire to, Rpoperty, or Aiding, Assisting, Counselling Procuring or Advising in the Burning of or Setting Fire to, Property in This State, [185 So. 424] Whether the Same Would be Arson at Common Law or Otherwise; to Denominate as 'Arson' the Crime Hereby Denounced, and to Divide the Same Into Degrees, and to Provide the Punishment for Each Degree.

'Be It Enacted by the Legislature of the State of Florida:

'Section 1. Arson.--First Degree.--Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccuptied, or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of Arson, in the First Degree, and upon conviction thereof, be punished by imprisonment in the State prison for not more than twenty years.

'Section 2. Arson.--Second Degree. Burning Buildings, etc., Other Than Dwellings.--Any person who wilfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any building or structure of whatsoever class or character, whether the property of himself or of another, not included or described in the preceding section, shall be guilty of Arson in the Second Degree, and upon conviction thereof, be punished by imprisonment in the State prison for not more than ten years.

'Section 3. Arson.--Third Degree. Burning of Other Property.--Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any personal property of another of whatsoever class or character of the value of Twenty-five or more Dollars, shall be guilty to Arson [134 Fla. 868] in the Third Degree and upon conviction thereof, shall be punished by imprisonment in the State prison for not more than three years.

'Section 4. Arson.--Fourth Degree. Attempt to Burn Buildings or Property.--Any person who wilfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any of the buildings or property mentioned in the foregoing sections, or who commits any act preliminary thereto, or in furtherance thereof, shall be guilty of Arson in the Fourth Degree and upon conviction thereof be punished by imprisonment in the State prison for not more than two years or fined not to exceed One Thousand Dollars.

'Section 5. All laws or parts of laws in conflict with this Act are hereby repealed.

'Section 6. This Act shall take effect July 1, 1931.

'Approved June 25, 1931.'

See Secs. 7208(8), (9), (10), (11), Perm.Supp.1936 to C.G.L.

This Act was held valid in Love v. State, 107 Fla. 376, 144 So. 843. The prior statute relating to arson was held to be invalid because it violated section 16, Article 3, or the State constitution, in that it contained regulations of two distinct and incongruous subjects. See Chapter 11812, Acts of 1927; Williams v. State, 100 Fla. 1054, 132 So. 186; Sawyer v. State, 100 Fla. 1603, 132 So. 188.

It is in effect argued here that Chapter 15603 violates section 16, article 3, of the constitution in that the title of the Act expresses the subject of the Act to be 'to Denominate as 'Arson' the Crime Hereby Denounced, and to Divide the Same Into Degrees, and to Provide the Punishment for Each Degree', when 'the statute does not denominate any particular crime as arson but each section deals with a [134 Fla. 869] different kind of burning, and instead of denouncing any one crime as arson, it has set forth four crimes and denounced each as arson'; that the crimes included in the statute are not degrees of any one offense, but four separate and distinct statutory crimes; that 'the statute purports to denounce a single crime and proceeds to denounce four separate and distinct crimes'. Such contentions are untenable.

It is within the power and judgment of the legislature by statute to define arson and to make it applicable to dwelling houses or other property, or to define different degrees of arson with reference to different kinds of property; and it is not necessary for any of such definitions to conform to common law definitions of arson or to definitions of arson contained in standard authorities on definitions, where the statute definitely and sufficiently gives the elements of the crime defined, and no provision of organic law is thereby violated. The statute is quoted above and its title does not express more than one subject of legislative regulation; and the subject expressed in the title is not misleading as to the matter contained in the body of the statute. [185 So. 425]

The subject of the enactment is the definition and punishment of crimes denominated arson, whether the same would be arson at common law or otherwise; all are kindred offenses and all are denominated arson, each a stated degree of arson with appropriate punishment for each degree, all definitely defined.

All the provisions contained in the body of the Act directly relate to the subject expressed in the title or to matters properly connected therewith. Section 16, Article 3, of the constitution is not violated by the enactment of Chapter 15603, Acts of 1931, Ex. Sess.

It is urged that the statute endeavors to not only change the [134 Fla. 870] definitions of common law arson, but it changes the definition of a dwelling house without giving any notice of such change in its title. Under the title of the Act, the property made the subject of arson by the Act may be defined by the statute even if it does include dwelling houses, whether occupied, unoccupied or vacant, and also other property.

The constitution requires the title of an Act to express the subject of the Act, not the mode or manner in which the subject is...