Fountain v. State
| Decision Date | 14 July 1926 |
| Citation | 109 So. 463,92 Fla. 262 |
| Parties | FOUNTAIN v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Volusia County; J. J. Dickinson, Judge.
Syllabus by the Court
Defects in indictment or information should be attacked by motion to quash, or demurrer, and attack by motion in arrest of judgment is not favored. Defects in indictments and informations should be called to the attention of the trial court by a motion to quash, or demurrer, so that the defects if any, may be corrected by the filing of another indictment or information. Neither the common law nor our statutes favor the policy of the defendant in waiting until the last stage of the cause and attacking such defects by a motion in arrest of judgment.
On motion in arrest of judgment, indictment will be liberally construed. While the sufficiency of the allegations in the indictment may be tested by a motion in arrest of judgment upon such motion the indictment will be liberally construed.
Indictment or information for 'larceny' must allege criminal intent, as well as act (Rev. Gen. St. 1920, § 5122, Laws 1921, c. 8563). The ulterior intent--the animus furandi--is the predominant element in larceny, and in every offense the indictment or information must allege as well the criminal intent as the act, though not infrequently the former is involved in the averment of the latter.
Buck & Jackson, of De Land, for plaintiff in error.
J. B Johnson, Atty, Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
On the 14th day of November, A. D. 1925, Jerome and Leroy Fountain and Eldredge Thornton were indicted for grand larceny in the Seventh judicial circuit in and for the county of Volusia. The body of the indictment, omitting the formal parts, charged that----
'On the 6th day of May, in the year of our Lord 1925, in the county and state aforesaid, 37 boxes of oranges, a better description of which is to the grand jurors unknown, of the value of $6 each, and of the total value of $222, currency of the United States of America, of the property, goods and chattels of one H. C. Bauman, then and there being found, did steal, take, and carry away, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Florida.'
Leroy Fountain pleaded guilty and on the 19th day of November, 1925, by consent of counsel for the state and for plaintiff in error, a severance was granted as to Jerome Fountain. On the same day the jury found the plaintiff in error guilty as charged in the indictment. Plaintiff in error, by his attorney, filed a motion in arrest of judgment, which motion was denied by the court below. The defendant took writ of error to the judgment, assigning as error the trial court's refusal to grant the motion for arrest of judgment, and based his contention upon the insufficiency of the indictment, in that it did not allege the felonious intent of the prisoner to deprive the owner of his property.
It is a well-established common-law principle, recognized by our courts, that----
Smith v. State, 72 Fla. 449, 73 So. 354.
While the sufficiency of the allegations in an indictment may be tested by a motion in arrest of judgment, upon this motion the indictment will receive a liberal construction, and the courts will not reverse where the indictment does not wholly fail to allege a crime or an essential element of a crime and sufficiently states the nature and cause of the accusation against the defendant, and is not so indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him to a new prosecution for the same offense. See Barineau v. State, 71 Fla. 598, 72 So. 179; Robert F. Adams v. State, 72 Fla. 32, 72 So. 473; Smith v. State, supra, and cases cited.
It is true that the statute (section 5122, Rev. Gen. Stats.), chapter 8563 of the laws of 1921, does not attempt to give a full definition of larceny. It reads, in part, as follows: 'Whoever commits larceny by stealing of the property of another, any money, goods, or chattels,' etc., naming various kinds of personal property, and prescribing the punishment.
Blackstone defines larceny as:
'The felonious taking and carrying away of the personal goods of another.' Book 4, 229.
And further on he explains that felonious means, done animo furandi--with the intent to steal. Lord Coke's definition was substantially the same. 3 Inst. 107. Bishop defines larceny as:
'The taking and removing by trespass of personal property which the trespasser knows belongs generally or specially to another, with the felonious intent to deprive him of his ownership therein; and, perhaps, for the sake of some advantage to the trespasser, a question on which the decisions are not harmonious.' Bishop's Crim. Law (9th Ed.) § 758.
The same definition is given in Clark on Crim. Law, p. 305. See, also, 36 C.J. 734.
Webster defines the word steal (the meaning of which has been...
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Baxley v. State, s. 79-36
...intent" with the permanent deprivation of the owner's property rather than simply with the intent to steal. See Fountain v. State, 92 Fla. 262, 109 So. 463 (1926); Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922). Whatever may have been the elements of "specific intent" in 1974, which was ......
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Daniels v. State
...which means the intent to steal, Hendry v. State, 39 Fla. 235, 22 So. 647 (1897), and includes the intent to deprive. Fountain v. State, 92 Fla. 262, 109 So. 463 (1926). The essential elements of larceny are (1) the carrying away of another's property (2) with felonious intent. Long v. Stat......
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Williamson v. State
... ... instrumentality described and its capability of being so used ... as to produce death or great bodily injury, the indictment ... was properly held sufficient as against an attack by motion ... in arrest of judgment. Studstill v. [92 Fla. 986] ... State, 83 Fla. 623, 92 So. 151; Fountain v ... State (Fla.) 109 So. 463, and cases cited ... When ... the state was making out its case, the witness Wooten was ... used and testified that he had investigated the scene of the ... alleged assault, had observed the location of the automobile ... tracks, and described such ... ...
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State v. Fields
...at a pre-trial motion to dismiss. An information is to be judged post-trial by a different and more liberal standard. Fountain v. State, 92 Fla. 262, 109 So. 463 (1926). The proper approach at this juncture of the proceedings was formulated by the court in State v. Cadieu, 353 So.2d 150 (Fl......