Hendrix v. State

• Decision Date: 21 March 1939
• Citation: 187 So. 590,136 Fla. 800
• Parties: HENDRIX et al. v. STATE [*]
• Court: Florida Supreme Court

187 So. 590

136 Fla. 800

HENDRIX et al. v. STATE ^[*]

Florida Supreme Court

March 21, 1939

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

Clyde Hendrix and E. J. Kennon were convicted of larceny of a hog and they bring error.

Affirmed.

BROWN J., dissenting.

COUNSEL

Watt Lawler, of Fort Myers, and Louis O. Gravely, of La Belle, for plaintiffs in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood and T. J Ellis, Assts. Atty. Gen., for defendant in error.

OPINION

PER CURIAM.

The writ of error brings for review judgments of conviction of the larceny of a hog.

The information described the hog, viz.:

'one hog, to-wit: one red sow about 3 yrs. old marked crop in left ear and split in right ear, of the property of Whitney Cypress'.

The evidence is sufficient to meet the descriptive allegations in the information. The evidence has been examined and found sufficient to support the judgments.

During the process of the trial the following occurred:

'Mr. Stubbs: Mrs. Carson brought here this sow and this sow is for the purpose of allowing the jury to view this sow, and I move the Court that you allow the jury to view this hog.

'Mr. Lawler: I have no objection to the jury viewing the hog, but as the defense has put on no witness at this time we will certainly ask that the hog be kept here in order that the witnesses that may be put on might identify the hog. The defendant at this time objects to the jurors viewing the hog unless there is a guarantee on the part of the state that they will have this hog present in court when the case is resumed and defense places witnesses on the stand in order that they may be able to view the hog and testify and testify as to the same hog.

'The Court: Sheriff, will you take the jury down to where the hog is now located and let them look her over? Thereupon the jury proceeded to a view of the hog in question, and having returned to the court room, were again taken from the court room and out of their presence and hearing the following proceedings were had. Comes now the defendant Hendrix and the defendant Kennon, after the jury has been allowed to view the hog over the objection of attorney for the defendants, and move the court for a mistrial herein for the following reasons, to-wit: that the state witness, Frank Brown, while the jurors were viewing the hog, and in the presence of one or more jurors, explained to the jurors without the court present, that the marks on the hog, and pointing to said marks, were the marks that he had testified about on the stand, and we offer testimony to prove such motion. Motion overruled. To which ruling and decision of the Court the defendants by counsel did then and there except. Thereupon the jury was called into court and in their presence and hearing the following proceedings were had:

'Mr. Lawler: Will the court allow me to put Frank Brown on the stand?

'The Court: We can do that in the morning as well as now. Thereupon court was recessed to the following morning, at which time, the jury being present, the State to further maintain the issues on its behalf produced and caused to be sworn as a witness Mrs. Heronima Carson, who testified as follows:'

After the introduction of further testimony, the following occurred:

'Whereupon the State rested its case. Thereupon the jury was taken from the court room and out of their presence and hearing the following proceedings were had.

'Comes now the defendant E. J. Kennon and moves the court to direct a verdict of not guilty as to this defendant in this case for the following reasons, to-wit: 1st. the state has totally failed to prove the defendant guilty as charged in this information. 2nd. that there are no facts given to the jury in this case on which a verdict of guilty could be based. Next: for the reason that the state has failed to prove beyond a reasonable doubt the guilt of this defendant as charged in the information. Motion overruled: To which ruling and decision of the court the defendant by counsel did then and there except. Comes now the defendant Clyde Hendrix and moves the court for a directed verdict herein for the following reasons, to-wit: 1st. the state has totally failed to prove a case against this defendant. 2nd. that the state has failed to prove the allegations charged in the information. Next. This defendant is charged with the larceny of one red sow and the testimony proves that the sow testified about is a red, black spotted, listed sow with white feet. Next. That there is no testimony in this case connecting this defendant with the larceny of any sow at any time. Next. That the testimony of the person charged to be the owner of the sow in question has testified so as to show positively that the sow upon which we are being tried is not the sow about which the prosecuting witness testified. Motion overruled. To which ruling and decision of the Court the defendant by counsel did then and there except. Thereupon the jury was returned into open court and in their presence and hearing the following proceedings were had.

'Mr. Lawler: Before putting on the defense's case the defense is ready to offer testimony in support of its motion for a mistrial as made yesterday, if the court desires and will permit the same.

'The Court: The court has already overruled the motion. To which ruling and decision of the court the defendants by counsel did then and there except.'

After conviction, defendants interposed motion for new trial which, inter alia, contained the following:

'During the trial of said cause and before the State of Florida had rested its case, and after the State witness Frank Brown had been sworn and testified in behalf of the State of Florida the Court upon request of the State and over objection of the defendant did permit the jury in said cause to leave the court room and court...