Duncan v. State

• Citation: 29 Fla. 439,10 So. 815
• Parties: DUNCAN v. STATE.
• Decision Date: 02 April 1892
• Court: United States State Supreme Court of Florida

10 So. 815

29 Fla. 439

DUNCAN v. STATE.

Florida Supreme Court

April 2, 1892

Error to circuit court, Columbia county; JOHN F. WHITE, Judge.

Joseph Duncan was convicted of maliciously burning a railroad bridge, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. An indictment charging the willful and malicious burning of a bridge owned by a corporation is sufficient in its description of the owner when it gives the corporate name of the owner, and states, in substance, that the company named is a corporation doing business in this state. In such cases it is not necessary to allege in the indictment that such corporation was 'duly organized or incorporated under the laws of any state or territory.'

2. In the trial under an indictment charging the willful and malicious burning of a bridge forming part of the roadbed of a railway company named in the indictment as the owner of such bridge, the corporate existence of such alleged owner is sufficiently proven if it be shown that it was a corporation in existence de facto, and de facto in the exercise of corporate functions and franchises, whether it was a corporation de jure or not.

3. In criminal cases, when the accused has put himself upon the country by his plea of not guilty, he has made his election to be tried by jury; and, upon his subsequent demurrer to the evidence, it is the right of the state to hold him to his election, and to have the facts determined by a jury. In such cases it is discretionary with the state attorney whether he will consent to take the facts from the jury by joining in such demurrer. The court in such case cannot compel the state's counsel to join in such demurrer.

4. In criminal trials it is entirely discretionary with the court whether it will entertain a demurrer to the evidence, even though counsel for the prisoner and the state should both consent to it. In such case, whether the court's refusal to entertain such demurrer can be made the subject of review by this court, quoere?

5. Where the evidence deos not expressly locate the crime as having been committed in the county charged in the indictment, but there are in the evidence references to various localities and landmarks at or near the scene of the crime, known by or probably familiar to the jury, and from which they may have reasonably concluded that the offense was committed in the county alleged, it is sufficient proof of venue.

6. On a trial for the criminal burning of a bridge alleged in the indictment to be the property of a railroad corporation named therein, the proof of the ownership by such corporation is sufficient if it shows that such bridge froms part of the roadbed of the corporation named, and is in the actual use of such corporation in the passage of its trains.

7. Those structures forming parts of railway beds by which they span streams, chasms, ditches, etc., held to be 'bridges,' the willful and malicious burning of which is prohibited by section 4, p. 358, McClel. Dig.

COUNSEL A. J. Henry, for plaintiff in error.

W. B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR, J.

The plaintiff in error, Joseph Duncan, was indicted at the fall term, 1891, of the circuit court of Columbia county, as follows, omitting the formal parts of the indictment 'That Joseph Duncan, late of said county laborer, on the 17th day of May, A. D. 1891, at and in the county, circuit, and state aforesaid, with force and arms did then and there unlawfully, wantonly, and maliciously injure by setting fire to and burning the trestle of the Florida Central & Peninsular Railroad Company, a corporation doing business in the state of Florida, in such manner as to endanger the passage of the train of said company, and throw the same from the track of said railroad. And the jurors aforesaid, upon their oaths aforesaid, do further say that the said Joseph Duncan, at the time aforesaid, and in the county and state aforesaid, did then and there unlawfully willfully, and maliciously set fire to and burn a bridge, the property of the Florida Central & Peninsular Railroad Company, a corporation doing business in the state of Florida, contrary,' etc. The defendant was tried and convicted on December 2, 1891, and from the judgment and sentence has taken writ of error to this court.

Before the trial the defendant, by his attorney, moved to quash the indictment on the following grounds: '(1) The said indictment, in its first count, does not charge any criminal offense under the laws of the state of Florida. (2) The said indictment, in its second count, does not allege any person, either artificial or natural, as owner of the bridge alleged to have been burned. (3) The indictment is otherwise so vague, indefinite, and insufficient as to mislead the accused, and to embarrass him in the preparation of his defense.' The court sustained this motion as to the first court in the indictment, but overruled it as to the second count, and this latter ruling is assigned as the first error.

In urging this assignment here the defendant's counsel abandons the ground upon which his motion was made in the court below, that is, 'that the indictment did not allege any person, either artificial or natural, to be the owner of the burned bridge,' but, instead thereof, contends here that this count of the indictment is defective because it fails to allege the 'due organization and existence of the Florida Central & Peninsular Railroad Company under the laws of some nation, state, or territory,' that company being the one alleged in the indictment to be the owner of the bridge burned. There is no merit in this contention. The indictment is found under section 4, p. 358, McClel. Dig. The gist of the offense is the willful and malicious burning of such a structure that is useful to another, or, it may be, to the public; the validity of the tenure by which it is owned, or the legal right of the alleged owner to own such a structure, does not enter into or form any feature of the offense. The naming of the owner is material only as a part of the description or identification of the thing burned, as being within the prohibition of the statute. We apprehend that in such cases, even if the alleged owner, the Florida Central & Peninsular Railroad Company, was not a corporation de jure, it would be sufficient to show that it was a corporation de facto in the actual exercise of its functions as such, and that the bridge burned was in its actual use and control as part of its roadbed, necessary to the passage of its trains. It would, indeed, be a monstrous proposition that a party should be allowed to burn the bridges from under a railroad in actual operation, periling life and property with indiscriminate recklessness, and then be allowed to go scot free because the company operating such road had omitted to track the law in some particular in proceeding to acquire corporate existence. In such cases is is necessary only to allege in the indictment, in substance, that the company is a corporation, without any allegation as to the legality or regularity or fact, even, of its corporate organization. People v. Jackson, 8 Barb. 637. In Owen v. State, 5 Sneed, 493, where the party was indicted for the fraudulent possession of counterfeit bank notes of the Bank of Tennessee, and where the indictment did not allege either that the bank was a corporation or was duly chartered, it was held that in such cases it was not necessary either to aver or prove the corporate existence of such institution; but, being a public chartered institution of that state, its courts would take judicial knowledge thereof, and that what is judicially known need not be averred or proved. McLaughlin v. Com., 4 Rawle, 464; Fisher v. State, 40 N. J. Law, 169. In Johnson v. State, 65 Ind. 204, it is held that 'an indictment for arson, charging the burning of property insured against loss by fire by an insurance company designated by a name apparently indicating it to be a corporation, need not affirmatively aver its corporate existence, nor whether it is a domestic or foreign corporation.' State v. Van Hart, 17 N. J. Law, 327; State v. Weller, 20 N. J. Law, 521. There is some conflict in the decisions upon this question, but the greater weight of the authorities, and, as we think, founded upon the better reasoning, is that in such cases it is not necessary to aver in the indictment that the corporation alleged to be the owner 'was incorporated,' or 'was duly incorporated.' It is sufficient if the indictment states simply that it is a corporation; and the proof of this allegation, in such cases, we think is sufficient, if it shows that the company named was de facto in existence, and de facto exercising corporate functions and franchises.

After the state had introduced her evidence and rested, the defendant introduced no testimony, but stated orally to the court, through counsel, that he demurred to the evidence of the state, and demanded...