Hamilton v. State

• Decision Date: 03 September 1937
• Citation: 129 Fla. 219,176 So. 89
• Court: Florida Supreme Court
• Parties: HAMILTON v. STATE.

176 So. 89

129 Fla. 219

HAMILTON v. STATE.

Florida Supreme Court

September 3, 1937

Error to Criminal Court of Record, Dade County; Ben C. Willard Judge.

Augusta Hamilton was adjudged guilty of possession of stolen property, and she brings error.

Reversed.

COUNSEL

Kehoe & Kehoe, of Miami, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BROWN Justice.

This writ of error is from final judgment below adjudging the defendant guilty 'of possession of stolen property' and sentencing her to imprisonment by confinement at hard labor in the state penitentiary for a term of one year.

Information which was in one count, was filed against Augusta S. Hamilton in the criminal court of record for Dade county, charging that on November 1, 1935, in Dade county, Fla., she 'did then and there unlawfully have, receive and aid in the concealment of (enumerating the property) * * *; of the value of Sixty Dollars, lawful money of the United States of America, a further and more particular discription of said merchandise being to the County Solicitor unknown, of the property, goods and chattels of Burdines, Inc., a Florida corporation, which merchandise had been theretofore stolen, she, the said defendant, at the time of so having, receiving and aiding in the concealment of the said merchandise, then and there well knowing that the same had theretofore been stolen, taken and carried away.'

The defendant filed a motion to quash the information upon the grounds that it charged no offense against the laws of the State, that it was not signed, sworn to, and filed in accordance with law and rules of practice, and that it was so vague, indefinite, uncertain, and contradictory that trial upon it would not preclude a subsequent trial upon the same facts alleged therein. The motion was properly denied by the court.

Motion was filed asking for a bill of particulars to give the defendant the following information in writing: (1) When each article described in the information was stolen; (2) whether the defendant had it in her possession, whether she received it, or whether she aided in the concealment thereof; (3) on what date or dates she had which piece or pieces of property in her possession, and on what date or dates which piece or pieces of property were received by her; (4) on what date or dates which piece or pieces of property were concealed by her; (5) the value of each piece of property; (6) the date on which it ceased to be stolen property; and (7) from what person or persons the defendant received said property, if in fact she did receive it. The motion was denied as to the first six grounds and granted as to the seventh ground. The State, in reply to the seventh ground, gave the name of Harold Prior.

Trial was had and the jury returned a verdict against the defendant of guilty as charged, and placed the value of the goods at $60. The defendant made a motion for a directed verdict at the close of the State's evidence and also at the close of all of the evidence, both motions being denied by the court. Motion for new trial was denied. Motion for arrest of judgment was denied. Final judgment was entered upon the verdict of the jury, adjudging the defendant to be guilty as charged and sentencing her to serve one year at hard labor in the state penitentiary. From the final judgment, writ of error was taken.

It is contended that that part of the information charging that the defendant 'did then and there unlawfully have, receive and aid in the concealment of' certain enumerated stolen property is not sufficient to charge the defendant with buying, receiving, or aiding in the concealment of the stolen property under the statute. Section 7239, C.G.L.

The word 'have' as used in the information is not emobided in the statute, and may be treated as surplusage. Bradley v. State, 20 Fla. 738. The statute, section 7239, C.G.L., states but one offense, although it gives three methods by which the offense may be committed, connecting these modes of committing the offense by the disjunctive 'or.' Consequently the information may in one count charge the defendant with any one, or any two, or all three of the methods of committing the offense if they are joined in the information by 'and' instead of 'or.' Proof of any one of the methods alleged is sufficient to sustain conviction and sentence for the offense. Bradley v. State, 20 Fla. 738; Stedman v. State, 80 Fla. 547, 86 So. 428; Croft v. State, 109 Fla. 188, 146 So. 649.

It is also contended that the information was insufficient in that part alleging that the merchandise 'had been theretofore stolen,' and that the defendant, at the time of committing the offense, did well know that 'the same had theretofore been stolen.'

The word 'theretofore' has been judicially defined to mean 'before then.' Hume v. United States (C.C.A.) 118 F. 689. Adopting that definition of the word here, the information alleges in effect that the merchandise 'had been before then stolen,' and that the defendant, at the time of committing the offense, did well know that 'the same had before then been stolen.'

The information must state explicitly and directly every fact and circumstance necessary to constitute the offense. See Clark, Criminal Procedure 153, § 60. The elements of the offense denounced by section 7239, C.G.L. are the buying, or receiving, or aiding in the concealment of stolen money, goods, or property, knowing at the time of so buying, receiving, or aiding in the concealment of said money, goods, or property that the same was stolen, or being apprised of circumstances that would put a man of ordinary intelligence on inquiry as to the stolen character of the money, goods, or property. Franklin v. State, 66 Fla. 213, 63 So. 418; Winton v. State, 87 Fla. 104, 99 So. 249; Hart v. State, 92 Fla. 809, 110 So. 253.

We think the information, while inartfully drawn, is sufficient to satisfy the rules laid down above. It charges that the property had before then been stolen, and that the defendant did, at the time of committing the offense, know that it had been stolen before then. It is not necessary for the information to allege that the property had retained its stolen character from the time it was stolen until it was delivered to the defendant, as this would be presumed in the absence of some positive showing to the contrary, which ordinarily would be a matter of defense to be brought out at the trial of the case.

The next question presented and argued is whether, when an information in one count charges the defendant with having received and aided in the concealment of several articles or pieces of property, on a certain specified day, and the proof is that the several articles or pieces of property were received at different times, the proof is sufficient to sustain the information.

The information charged that the defendant did on November 1, 1935, unlawfully receive and aid in the concealment of the entire list of property enumerated in the information, consisting of eighteen separate items.

The State put on as a witness to relate the time when the articles of stolen property were delivered to the defendant, Harold Prior, who worked for Burdines, Inc., and who delivered the goods to the defendant. According to the testimony of Harold Prior, he delivered to the defendant in June, 1935, a dozen or more women's handkerchiefs, two pillowcases, two velvet finished scarfs, three bridge sets, consisting of a little standard table cloth with four napkins, three ladies purses, a Peggy Sage manicure set, a water set, consisting of a thermos jug, tray, and glasses, and some other things which he did not remember, all of which were estimated to be worth approximately $100, and for which the defendant agreed to pay $50. She paid $30 of this amount. The witness also testified that, prior to the delivery of these goods to the defendant in June, 1935, he delivered to the defendant a set of silver, with some extra pieces such as a butter spreader, ice tea spoons, and a carving set, which was worth approximately $50, and for which the defendant paid $20. The witness also testified that in October, 1935, he sold the defendant two suits of clothes for men for $13.50, which were worth approximately $20. Thus the State's witness proved that the property enumerated in the sole count of the information was delivered to and purchased by the defendant on three separate occasions.

Receiving or concealing different articles of stolen property at different times and on separate and unconnected occasions constitute separate offenses and cannot be prosecuted as one crime, in one count, though all of the property is afterwards found in the possession of the defendant at the same time and place (Smith v. State, 59 Ohio St. 350, 52 N.E. 826); and it has been held in a Texas case that this is equally true, although all of such articles are stolen by one, pursuant to an agreement between that person and the defendant, that any goods so stolen shall be purchased, received, or concealed by the defendant (See Lockhead v. State, 85 Tex.Cr.R. 459, 213 S.W. 653; 2 Brill Cyc. of Crim. Law 1458, § 922); but we need not decide the latter proposition here.

Two distinct and separate offenses cannot, as a general rule, be laid in one count of an information, especially where the punishment for each offense is different. If they are so laid, and it so appears on the face of the information, it is good cause for demurrer or motion to quash, and sometimes for arresting judgment. McGahagin v. State, 17 Fla. 665. In 14 R.C.L. p. 194, it is said:

'It is a general rule that an indictment or information charging two or more distinct and separate offenses in one count

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