Hamilton v. State

• Court: Florida Supreme Court
• Writing for the Court: BROWN, Justice.
• Citation: Hamilton v. State, 133 Fla. 481, 182 So. 854 (Fla. 1938)
• Decision Date: 16 July 1938
• Parties: HAMILTON v. STATE.

182 So. 854

133 Fla. 481

HAMILTON v. STATE.

Florida Supreme Court

July 16, 1938

Rehearing Denied Aug. 2, 1938.

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

James Hamilton was convicted of assault with intent to commit armed robbery, and he brings error and petitions for writ of habeas corpus.

Affirmed.

COUNSEL

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

BROWN Justice.

Plaintiff in error was convicted of assault with intent to commit armed robbery and was sentenced to twenty years imprisonment. The cause is now brought to this Court for review, by return of the writ of error issued herein, and also by petition for writ of habeas corpus, attacking the validity of the indictment. A former conviction was set aside, for reasons not pertinent here. See State ex rel. Hamilton v. Chapman, 125 Fla. 235, 169 So. 658.

The information upon which the conviction is predicated is as follows (omitting the formal parts):

'Roy D. Stubbs, State Attorney of the Twelfth Judicial Circuit of the State of Florida, prosecuting for the State of Florida, in the County of Collier, under oath information makes that James Hamilton, late of the County and State aforesaid, on the 1st day of April in the year of Our Lord One Thousand Nine Hundred and Thirty-six, in the County and state aforesaid, did unlawfully make an assault upon one Vance Fackler, with intent then and there to rob, steal and take from the person and custody of the said Vance Fackler, money and other property the subject of larceny, to-wit: thirty seven dollars and fifty cents ($37.50) in currency and coin, of the United States of America, money current, of the value of $37.50, and that the said Vance Fackler was entitled to the possession of said money as against the said James Hamilton, and that the said James Hamilton was not the owner of said monies, and the said James Hamilton was then and there armed with a dangerous weapon, to-wit: a pistol, and with the intent then and there on the part of the said James Hamilton to kill and maim the said Vance Fackler if resisted;'

Motion to quash the foregoing information was overruled. Plaintiff in error here attacks the sufficiency of the information on three grounds:

First: That it does not allege that the defendant committed an assault with intent to commit an assault, with intent to rob, etc.,

Second. On the ground that the information does not charge that the offense was feloniously done, and

Third. That the information does not name the owner of the property.

The information endeavors to charge under section 7165, Compiled General Laws of Florida of 1927 an assault with intent to commit the felony described in Section 7157, C.G.L., as amended by Chapter 13792, Acts of 1929. The two statutes are as follows:

7157 (5055) 'Robbery by Person Armed.--Whoever assaults another and feloniously robs, steals and takes from his person or custody, money or other property which may be the subject of larceny, such robber being armed with a dangerous weapon, with the intent if resisted to kill or maim the person robbed, or, being so armed, wound or strike the person robbed, shall be punished by imprisonment in the State Prison for a term of years or for life imprisonment in the State Prison in the discretion of the court for and during a term of his natural life.'

'7165. (5063.) What assaults felonies.--Whoever commits an assault on another, with intent to commit any felony punishable with death or imprisonment for life, shall be punished by imprisonment in the State prison not exceeding twenty years. An assault with intent to commit any other felony shall be punished to an extent not exceeding one-half the punishment which could have been inflicted had the crime been committed.'

It is contended by plaintiff in error that as the information seeks to charge him with an assault on another with intent to commit the felony described by Section 7157, supra, that it is necessary for the information to set out every essential element of that felony and that assault is one of those elements. The first ground of attack on the sufficiency of the information then is that it does not charge that the defendant assaulted another with intent to assault another and feloniously rob, steal and take from his person, etc.

We can not agree with plaintiff in error's contention. The crime charged by the information is assault with intent to commit a felony. Assault itself is one of the essential elements of both of the crimes set out in the above statutes. The information alleges that the defendant assaulted another and a further allegation that he intended to assault another would be mere surplusage. The completed act is sufficiently alleged and this would of necessity include the 'intent to assault.'

It is next contended that as the statutory definition of armed robbery, as set out by Section 7157, supra, states 'whoever assaults another and feloniously robs [etc.],' it is necessary for the information to allege that the act was done 'feloniously.'

Where the facts and allegations in the information or indictment clearly show that the crime charged is a felony, as in this information, then to go further and allege that the act is a felony or was done feloniously would be to allege a mere conclusion of law. Especially is this true in view of Section 8370, C.G.L. of 1927: 'Indictments in felonies.--It shall not be necessary to allege in an indictment that the offense charged is a felony, or felonious or done feloniously, nor shall any indictment or complaint be quashed or deemed invalid by reason of the omission of the words 'felony,' 'felonious' or 'feloniously.'

In Akin v. State, 86 Fla. 564, 98 So. 609, 611, this Court held: 'At common law indictments for felonies should allege the acts constituting the crime to have been feloniously done; but, in consequence of the constitutional and statutory provisions of this state, the failure to allege that the criminal acts charged were feloniously done does not affect the validity or sufficiency of the indictment, when not required by the statute defining the offense. McCaskill v. State, 55 Fla. 117, 45 So. 843; Riggins v. State, 78 Fla. 459, 83 So. 267; State v. Murphy, 17 R.I. 698, 24 A. 473,...