Hughes v. State

• Decision Date: 20 July 1923
• Parties: HUGHES et al. v. STATE.
• Court: Florida Supreme Court

97 So. 478

86 Fla. 202

HUGHES et al. v. STATE.

Florida Supreme Court

July 20, 1923

Rehearing Denied Sept. 10, 1923.

Error to Circuit Court, Marion County; W. G. Bullock, Judge.

Ralph Hughes, alias Ralph Holter, and another, were convicted of grand larceny, and they bring error.

Affirmed.

Browne dissenting.

Syllabus by the Court

SYLLABUS

Verdict of guilty under indictment charging breaking and entering with intent to commit felony held to include lower offense of intent to commit misdemeanor. In a prosecution where the offense charged is that of breaking and entering a building with intent to commit a felony, to wit, grand larceny, such offense includes the lower offense of breaking and entering with intent to commit a misdemeanor, to wit, petit larceny and, where the verdict is 'guilty' without stating the degree of larceny intended to be committed in the breaking and entering, a judgment of conviction and sentence within the penalty prescribed for breaking and entering with intent to commit petit larceny, will not be reversed where there is evidence to sustain a conviction of the lesser offense, even though the greater offense is not shown by the evidence.

COUNSEL

R. B. Bullock and T. S. Trantham, both of Ocala, for plaintiffs in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

WHITFIELD, J.

Upon an indictment charging the breaking and entering of a railroad depot building with intent to commit a felony, to wit, grand larceny, the defendants were found to be 'guilty.'

There is ample evidence properly admitted to prove the breaking and entering with intent to steal blank express money orders, etc., that were stolen and utilized by filling them out and collecting money on them greatly in excess of $50. For breaking and entering such a building with intent to commit a felony the penalty shall not exceed 15 years in the state penitentiary. Section 5116, Rev. Gen. Stats. 1920. For breaking and entering to commit a misdemeanor the maximum penalty is imprisonment in the state prison not exceeding 5 years. Section 5119, Rev. Gen. Stats. 1920. The larceny of property of $50 value or more is a felony; while petit larceny of less than $50 in value is a misdemeanor. The sentence imposed is two years' imprisonment in the state prison. Breaking and entering with intent to commit the misdemeanor of petit larceny is included within the offense of breaking and entering with intent to commit the felony of grand larceny. In this case, even if the evidence does not show a breaking and entering with intent to commit grand larceny, it does show a breaking and entering with an intent to commit petit larceny; and as the verdict is 'guilty,' which includes the lesser offense, and the sentence is appropriate to a verdict of guilty of breaking and entering with intent to commit the misdemeanor of petit larceny, the sentence is not repugnant to the charge or to the verdict, and conforms to the law and to the evidence adduced. See Clark v. State, 59 Fla. 9, 52 So. 518; United States v. Linnier (C. C.) 125 F. 83; State v. Bloedow, 45 Wis. 279.

Even if technical errors of procedure were committed, they could not reasonably have been prejudicial or harmful to the defendants in view of the whole record of the trial and proceedings.

Affirmed.

TAYLOR, C.J., and ELLIS, WEST, and TERRELL, JJ., concur.

BROWNE J., dissents.

DISSENTING

BROWNE, J. (dissenting).

The indictment charges breaking and entering with intent 'to commit a felony, to wit, grand larceny.'

The verdict of the jury was, 'We the jury find the defendants, Ralph Hughes, alias Ralph Holter, and Colon W. Knight guilty.'

In this case the indictment charged the degree of the offense 'grand larceny.' It is well settled that----

'Where the indictment charges the particular degree of the offense, a verdict of guilty without specifying the degree is sufficient, being in effect a finding that the defendant is guilty of every matter alleged against him in the indictment.' 27 R. C. L. 862.

It is also well settled that, if the jury intends to find the defendant guilty of an offense of an inferior degree to that charged, the verdict must specify it. Cranemer v. State of Washington, 168 U.S. 124, 18 S.Ct. 1, 42 L.Ed. 407; Timmerman v. Territory of Washington, 3 Wash, T. 445, 17 P. 624.

The doctrine upon which this case is affirmed seems to be suggested rather than avowed, and is, in effect, that, upon the conviction of a person for a higher grade of an offense that includes offenses of a lesser degree, the trial court may of its own motion ignore the verdict and treat it as if the accused had been convicted of one of the offenses of lesser degree.

It is true that a court may set aside a verdict of conviction of a higher offense if the testimony does not warrant it and accept a plea of guilty of a lesser offense.

It is also true that in those states that have a statute to the effect that the Supreme Court 'may affirm, reverse, or modify the judgment, and render such judgment as the district court should have rendered,' the appellate court may order that the penalty for the lesser offense be imposed.

Neither of these questions is involved here, and the case of United States v. Linnier (C. C.) 125 F. 83, and the cases therein cited, are not applicable, and need only the most cursory investigation to disclose their inapplicability.

In the case of State v. Bloedow, 45 Wis. 279, the appellate court held that the verdict was too vague and uncertain to support a judgment for mayhem, but that it clearly convicted the defendant of assault and battery, and sent the case back with direction that the defendant be punished upon the verdict for assault and battery.

In the case of Clark v. State, 59 Fla. 9, 52 So. 518, the indictment charged the defendant with the larceny of a number of articles named therein, of the total value of $125. The value of the goods found at the defendant's house exceeded $20, and this court held that,...