Holder v. State

• Decision Date: 04 April 1939
• Citation: 136 Fla. 880,187 So. 781
• Parties: HOLDER v. STATE.
• Court: Florida Supreme Court

187 So. 781

136 Fla. 880

HOLDER v. STATE.

Florida Supreme Court

April 4, 1939

Error to Circuit Court, Levy County; H. L. Sebring, Judge.

Gordie Holder was convicted of having fraudulently altered and changed the marks of an animal not his own with intent to claim the same and to prevent the identification by the true owner and he brings error.

Reversed.

COUNSEL Douglas & Schad, Zach H. Douglas, and Parks M Carmichael, all of Gainesville, for plaintiff in error.

George Couper Gibbs, Atty. Gen., Tyrus A. Norwood and Thomas J Ellis, Assts. Atty. Gen., and J. C. Adkins, of Gainesville for the State.

OPINION

THOMAS Justice.

The plaintiff in error was charged in an information with having fraudulently altered and changed the marks of an animal 'not his own, with intent to claim the same and to prevent identification by * * * the true owner'. (Italics supplied)

This conforms to the definition of the offense denounced in section 7279, C.G.L. 1927, except that the conjunctive 'and', which we have italicized, does not appear in the statute, but instead the disjunctive 'or' is used. This does not render the information duplicitous, as is urged by plaintiff in error.

It has been annouced, by authority approved by this Court, that where a certain act or another is declared unlawful, the word 'and' may be substituted for 'or' in one count of an indictment without rendering it duplicitous. Strobhar v. State, 55 Fla. 167, 47 So. 4; Bradley v. State, 20 Fla. 738.

The person named as the owner of the animal, the mark on which had been changed, was allowed to remain in the court room during the progress of the trial and to testify for the State, although all other witnesses were placed under the rule.

Before any evidence was introduced the defendant protested against the presence of this witness and insisted that it would prejudice the jury; would perform no useful service to the State, and that he was not an officer of the court. At least once during the examination of a State witness the State Attorney in a question referred to the alleged owner 'sitting there'. When the alleged owner took the witness stand defendant's counsel again objected to any testimony being given by him.

The offense charged was one against property, the property of the witness who was privileged to remain in the court room during the trial, and he was, of course, intensely interested in a conviction.

The matter of excluding witnesses from the inquest and making exceptions to the rule invoked is within the discretion of the presiding judge, but, we think, that in the circumstances reflected by the bill of exceptions there was an abuse of it in this case. It was a distinct advantage to the State to let this witness hear and observe other witnesses and then testify himself, an advantage to prevent which the rule was put into force. No excuse whatever for excepting him appears in the record.

The last question we are asked to decide is the sufficiency of the evidence. It was necessary to conviction that the State prove beyond a reasonable doubt that the defendant changed a mark with the intent to claim the animal and prevent its identification by the owner. At the time the mark was actually altered three persons were present, the defendant and two witnesses, who testified for the State, the purchaser of the animal and his son. The defendant's story was that the purchaser asked him to make the alteration so the animal could be identified as his, and that he complied with the request while the purchaser looked on and his son assisted. This is likewise the tale of the purchaser, as shown by these questions propounded to him and his replies:

'Q. Did he do it (change the mark) of his own volition or do it at your request?

'A. I told him I wanted the mark changed before I put it in my field.

'Q. He

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