Enson v. State

Decision Date30 November 1909
Citation58 Fla. 37,50 So. 948
CourtFlorida Supreme Court
PartiesENSON v. STATE.

In Banc. Error to Criminal Court, Dade County; H. F. Atkinson Judge.

Charlie Enson was convicted of grand larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

By statute, bank notes and money are made the subject of larceny; and, where the required degree of certainty cannot be used in specifying the pieces or denominations of coins stolen or the number and denomination of bank bills, it will be enough to state that a better description than that given is unknown to the prosecuting solicitor, or to the grand jury, as the case may be.

In a prosecution for larceny, under the plea of not guilty, the allegation in the information of the prosecuting solicitor's want of knowledge of a better description of the property stolen is traversable and the subject of inquiry, and an information false in this respect will not support a conviction.

In a prosecution for larceny, under the plea of not guilty, where the information alleges the prosecuting solicitor's want of knowledge of a better description of the property stolen the defendant may not be acquitted upon proof that the solicitor could easily have known a better description of the property stolen. The fact that the solicitor could easily have ascertained a better description of the property may be evidence that he knew the same; but it is not conclusive, and cannot be made an absolute test of the sufficiency of the allegation that he did not know.

In a prosecution for larceny, where the information alleges that a more particular description of the property is unknown to the prosecuting solicitor, and there was no evidence that the solicitor knew a more particular description of the property alleged to have been stolen, the court properly refused to give an instruction predicating defendant's right to an acquittal on the fact that the solicitor could easily have known a better description of the property than that given in the information.

In a prosecution for larceny of bank bills and notes and silver specie, the information alleges that a more particular description than is given of the same is to the prosecuting solicitor unknown, the accused may, upon a proper showing timely made, move the court to order the solicitor to give such other or more particular description, in the nature of a specification or bill of particulars of the property, as may have been acquired by the solicitor after filing the information, and the trial may be suspended until this can be done.

An information found to be sufficient in its allegations of the time and place of the larceny alleged.

Evidence found to be sufficient to support a verdict of guilty of grand larceny.

A motion for new trial on the ground of newly discovered evidence is properly overruled, where the accused fails to show that the evidence was discovered since the trial, and that he could not have discovered it before the trial by the exercise of due diligence.

An alternative sentence is erroneous in providing that the defendant be imprisoned in the state penitentiary upon default in the payment of the fine and costs. Where the primary sentence imposed is a fine and costs of prosecution only, the court should fix a period of imprisonment in the county jail, instead of in the state penitentiary, for the nonpayment of such fine and costs.

COUNSEL Mitchell D. Price, for plaintiff in error.

Park Trammell, Atty. Gen., for the State.

OPINION

PARKHILL J.

The plaintiff in error was convicted of the crime of grand larceny, and brings the judgment here by writ of error for review.

Omitting the caption, the information is as follows: 'In the name and by the authority of the state of Florida, James T Sanders, county solicitor for the county of Dade, prosecuting for the state of Florida in the said county, under oath information makes that Charlie Enson, laborer, late of the county of Dade and state of Florida, on the 19th day of April in the year of our Lord one thousand nine hundred and nine, in the county and state aforesaid, then and there certain bank bills and notes, commonly known and denominated as lawful currency of the United States, of divers denominations, the number and denomination of which are to the prosecutor unknown, and certain silver specie, a more particular description of which is to the prosecutor unknown, amounting in the aggregate to the sum of $100 lawful currency of the United States, and of the value of $100, which said currency and specie was then and there the property of one W. J. Cole, the said Charlie Enson then and there having found, did steal, take, and carry away, contrary to the statute,' etc.

At the close of the evidence the defendant requested the judge to give the following instruction to the jury: 'The defendant in this case is charged with stealing certain bank bills and notes known as lawful currency of the United States of divers denominations, the number and denomination of which are alleged to be unknown to the county solicitor, and also certain silver specie, a more particular description, it is alleged, is unknown to the county solicitor, said property being alleged to be of the aggregate value of $100. It appears from the evidence that the county solicitor knew or could easily have known a better description at the time of the filing of the information than the description set forth in the said information. There is, therefore, a fatal variance, and you will accordingly find a verdict of not guilty.'

This instruction was properly refused, for the reason that there was no evidence that the county solicitor knew the number and denomination of the bank bills or a more particular description of the silver specie alleged to have been stolen, and the instruction erroneously predicated defendant's right to an acquittal on the fact that the county solicitor could easily have known a better description of the property than that given in the information. It asked too much. The question here is whether the allegation that a more particular description of the bank notes and specie was unknown to the county solicitor is sustained by the proof, not whether the county solicitor could easily have known a better description. In some jurisdictions the rule is stated to be that a variance results where it becomes apparent from the evidence that the matter alleged as unknown might have been discovered by the exercise of ordinary diligence; but these cases would seem to be properly placed upon lack of diligence or carelessness in making the accusation, and not upon variance between the allegation and proof. The better rule would seem to be that to create a variance the fact of knowledge, not ability to acquire knowledge, must affirmatively appear from the evidence. The information alleges that a more particular description of the property is unknown to the solicitor. It becomes a question, then, upon all the evidence, of accord or variance between this allegation and the proof, not of diligence or carelessness in making the accusation. It is doubtless true that, under the plea of not guilty, the allegation of want of knowledge of a better description of the property on the part of the county solicitor is traversable and the subject of inquiry, and that an indictment false in this respect would not support a conviction. But the defendant desires to go beyond the allegation of the information and raise the outside issue that the solicitor could easily have known a better description of the property. The fact that the county solicitor could easily have ascertained a better description of the property may be evidence that he knew the same; but it is not conclusive, and cannot be made an absolute test of the sufficiency of the allegation that he did not know. 22 Cyc. 465; Commonwealth v. Sherman, 13 Allen (Mass.) 248; Commonwealth v. Hill, 11 Cush. (Mass.) 137, text 141; Commonwealth v. Hendrie, 2 Gray (Mass.) 503; Commonwealth v. Thornton, 14 Gray (Mass.) 41; Commonwealth v. Stoddard, 9 Allen (Mass.) 280, text 282, 283; Commonwealth v. Noble, 165 Mass. 13, 42 N.E. 328; Wells v. State, 88 Ala. 239, 7 So. 272; Duvall v. State, 63 Ala. 12; Terry v. State, 118 Ala. 79, 23 So. 776; Winter v. State, 90 Ala. 637, 8 So. 556; White v. People, 32 N.Y. 465; Noakes v. People, 25 N.Y. 380; People v. Noakes, 5 Parker, Cr. R. (N. Y.) 292; People v. Fleming, 60 Hun, 576, 14 N.Y.S. 200; State v. Carey, 15 Wash. 549, 46 P. 1050; Rex v. Walker, 3 Camp. 264. See, also, Guthrie v. State, 16 Neb. 667, 21 N.W. 455; Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481; Rex v. Bush, Russ. & R. C. C. 372; Lang v. State, 42 Fla. 595, 28 So. 856; Com. v. Gallagher, 126 Mass. 54.

In discussing this question, the Supreme Court of Massachusetts, in Commonwealth v. Sherman, supra, said:

'The origin of the statement in some books that, if a name alleged to be unknown might with reasonable diligence have been ascertained by the prosecutor, the defendant is entitled to an acquittal, is probably to be found in some imperfect reports of English nisi prius cases. 2 East, P. C. c. 16, par. 89. The King v. Keakin, 2 Leach (4th Ed.); Rex v. Walker, 3 Camp. 264; Rex v. Robinson, Holt, N. P. C. 595. Upon such a case being cited Mr. Justice Littledale, an eminent commonlaw lawyer, said: 'The question is whether the person is known to the grand jury. It will be difficult to prove that he was so known, and unless he was known to the grand jury, I should doubt about that case.' Rex v. Cordy, 2 Russell on Crimes (3d Ed.) 98, note by Greaves. The earliest case which we have seen in which a traverse jury were required to find that the grand jury could not by reasonable diligence have ascertained the name was one tried
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    • Florida Supreme Court
    • February 24, 1917
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