Kennedy v. State

• Decision Date: 05 April 1893
• Citation: 12 So. 858,31 Fla. 428
• Parties: KENNEDY v. STATE.
• Court: Florida Supreme Court

12 So. 858

31 Fla. 428

KENNEDY v. STATE.

Florida Supreme Court

April 5, 1893

Error to circuit court, Walton county; W. D. Barnes, Judge.

Elias J. Kennedy was conviced of larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Under the provisions of section 2893 of the Revised Statutes an indictment containing two counts, both charging the larceny of the same goods at the same time and place, but laying the ownership thereof in different individuals, is not bad for duplicity.

2. Where the legal owner of goods delivers them to another as bailee for safe-keeping, and the same are stolen from the possession of such bailee, the indictment charging the larceny thereof may lay the ownership either in the legal owner or in the bailee, or, in separate counts, may lay the ownership in both the legal owner and the bailee, at the option of the pleader.

3. The ownership of goods stolen must be proved as alleged in the indictment charging the larceny thereof; but where the indictment lays the ownership in E. and W., and the proof shows that the stolen goods belonged legally to K., but that when stolen they were in the possession of E. and W. for safe-keeping, such proof is sufficient to sustain the allegation of ownership in E. and W.

4. Where K., who is the legal owner of the property, leaves it for safe-keeping in the immediate possession of E., who is the wife of W., and E. and W. live together as man and wife in the same house, and such property is stolen from the possession and custody that E. and W. have over the same consequent upon their relationship at husband and wife, an indictment charging its larceny may properly lay the ownership thereof either in the legal owner, or in W., the husband, or in E., the wife, or in E. and W. jointly, or may lay the ownership to be in all of them; and if the proofs sustain such status and relationship of the parties as between themselves and towards the property stolen, it will be sufficient to establish the ownership as laid.

5. Where circumstantial evidence is relied upon for conviction it is necessary that the circumstances shall all concur to show that the prisoner committed the crime, and that they all are inconsistent with any other rational conclusion than that of his guilt.

COUNSEL C. J. Perrinot and Daniel Campbell, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR J.

The plaintiff in error was indicted, tried, and convicted in the circuit court of Walton county for larceny, and brings such judgment of conviction here for review by writ of error.

The indictment upon which the trial was had consists of two counts; the first alleging the larceny to have been of $2,500, consisting of gold coin of various denominations, and sundry current treasury notes of the United States, and bank bills of different national banks, and sundry current certificates of gold and silver deposits in the treasury of the United States, of the goods, chattels, and moneys of William Kennedy and his wife, Emma Kennedy. The second count charges the larceny of the same property, but lays the ownership thereof in one John W. Kennedy.

The defendant moved the court to quash this indictment upon various grounds, none of which are urged here except the one contending that said indictment is void for duplicity, in that by its first count it alleges the ownership of the property to be in William and Emma Kennedy, and by its second count lays such ownership in John W. Kennedy. This motion was denied, and this ruling is assigned as the first error.

There was no error here. Section 2893, Rev. St., expressly provides: 'No indictment shall be quashed or judgment be arrested or new trial granted on account of any defect in the form of the indictment; or of misjoinder of offenses, or for any cause whatsoever, unless the court shall be of the opinion that the indictment is so vague indistinct, and indefinite as to mislead the accused, and embarrass him in the preparation of his defense, or expose him, after conviction or acquittal, to substantial danger of a new prosecution for the same offense.' This provision of law was in force at the time of and long prior to the adoption of the Revised Statutes, being incorporated therein from chapter 1107, Laws 1861. And this court, in Green v. State, 17 Fla. 669, says of it, in passing upon a similar objection, that it was evidently adopted with particular reference to the question which is raised in this case. We cannot see wherein the indictment under discussion was at all calculated to mislead or embarrass the defendant in the preparation of his defense, nor wherein there could have been any substantial danger of an exposure to another or new prosecution for the same offense in the event of an acquittal or conviction thereunder.

In Owen v. State, 6 Humph. 329, it was held that the property in a horse that was the subject of the larceny was well laid in different counts of the indictment in both its real owner and in the person who had the temporary possession thereof.

The second assignment of error was the refusal of the court at the trial to permit a witness--John W. Kennedy--to be questioned as to whether he did not tell one B. S. Liddon, at Westville, in February, 1891, that he did not have a cent of money. The evidence in the case developed the fact that in August, 1891, this witness deposited with Emma Kennedy for safe-keeping the $2,500 alleged to have been the subject of the larceny. The evident purpose of the question that he was not permitted to answer was to lay the groundwork for impeaching him as to the possession by him of so much money in August, 1891. For this purpose the time fixed in the refused question was too remote to be at all relevant, for the obvious reason that, though a man may not have a cent in February, it is no reason or proof that he could not have a large amount of cash by the following August.

The third assignment of error is the refusal of the court to permit a witness--John Neel--to testify that when he paid over to J. W. Kennedy, in July, 1891, $1,000 of the money alleged to have been subsequently stolen, J. W. Kennedy then passed it over to the defendant, saying that it was the defendant's money. The objection made and sustained to the admission of this testimony was because of its irrelevancy. We, like the court below, fail to see its relevancy to any issue in the cause, and no effort seems to have been made to point out or suggest its relevancy. There was, therefore, no error in its admission.

The fourth and fifth assignments of error will be considered together, and are as follows: Fourth. The court erred in refusing the following charge, asked by defendant's counsel: 'If from the evidence you find that the property was in possession of Emma Kennedy as an agent or special custodian of the owner, J. W. Kennedy, even though this possession be with the knowledge and consent of her husband, William Kennedy, then the evidence does not sustain the allegation as to the possession and ownership of William and Emma Kennedy, and the defendant should be acquitted.' Fifth. The court erred in charging the jury: 'The question of the legal ownership was not for their determination, and that they were not required, for the purposes of this case, to inquire further than to ascertain the possession of the property.' The only object in alleging in an indictment for larceny any particular ownership in the property stolen is to subserve the purpose of a part of the description of the stolen property, and to assist in its identification. 2 Bish. Crim. Proc. § 718. Technical niceties as to the legal ownership or title to the stolen property are never properly at issue in such cases. The general rule being that, where chattels are taken feloniously from any bailee or other person having in them a special ownership,--from one, e. g. who has it for safe-keeping otherwise than as servant,--the ownership may be laid in the indictment either in such possessor or the real owner, at the election of the pleader. 2 Bish. Crim. Proc. § 721; Owen v. State, supra; Palmer v. People, 10 Wend. 166; Barnes v. People, 18 Ill. 52. When the proof is gone into, while it must sustain the allegation in the indictment as to the ownership laid therein, yet, as to the ownership, it is sufficient if it shows that the person alleged as owner had the possession thereof as bailee or custodian for safe-keeping at the time of the felonious taking. 2 Greenl. Ev. § 161; State v. Somerville, 21 Me. 14, and authorities there cited.

At the common law, because of the wife's inability to own any property in possession, in larceny of the wife's goods the ownership had to be laid always in the husband, but this rule has been changed in the American states that have adopted laws giving to the wife a separate proprietorship over all classes of property at law. By our constitution and laws a married woman has the right to own in her own separate right all kinds of property, real and personal. By section 2071, Rev. St., (enacted long prior to the Revised Statutes,) all the properties of the wife are given into the care and management of the husband. In consequence of this, where the wife's property has become the subject of larceny, the ownership thereof in an indictment for such larceny can be properly laid in either the husband or the wife, where they live together; in her, because of her legal ownership, and in him, because of his special ownership as custodian. Petre v. State, 35 N. J. Law, 64; State v. Wincroft, 76 N.C. 38; State v. Matthews, Id. 41; Lavender v. State, 60 Ala. 60; 2 Bish. Crim. Proc. § 726. In the case under consideration the subject of the larceny was given, from the proofs, by its legal owner, into the...