Lang v. State

• Decision Date: 25 July 1900
• Citation: 28 So. 856,42 Fla. 595
• Parties: LANG v. STATE.
• Court: Florida Supreme Court

28 So. 856

42 Fla. 595

LANG v. STATE.

Florida Supreme Court

July 25, 1900

Error to circuit court, Nassau county; Rhydon M. Call, Judge.

S. R Lang was convicted of larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. An indictment for larceny, under section 2440, Rev. St., in proper form, and found to be a true bill by a grand jury in a court having jurisdiction of the subject-matter, properly signed, indorsed, and presented as required by statute, and describing the property alleged to have been stolen as $100 of the currency of the United States of America, the denomination of which was to the grand jurors unknown, of the property of a named person, is not so defective in reference to the description of the property as to amount to no indictment.

2. In criminal pleading, the omission to state some matters of description, not essential constituents of an offense, but which are required to be stated if known, may be excused by an allegation that they were unknown to the indicting grand jury; and this rule applies to the description of property in indictments for larceny.

3. Whether the allegation in an indictment for larceny of a want of more perfect knowledge of the description of the property alleged to have been stolen is subject to inquiry before the trial jury, need not be considered in a case where there is no evidence that the grand jury were in possession of information that would enable them to give a better description.

4. The trial court should not, by any arbitrary standard, direct the jury thereby to weigh and estimate the testimony of a defendant who takes the stand as a witness.

5. A request to charge, on behalf of a defendant who testifies in his defense, that the jury have no right to disregard his testimony on the ground alone that he is the defendant in the case, is properly refused, especially where the court instructs the jury fully as to how they should weigh the testimony of witnesses generally.

6. In an indictment for grand larceny under a statute providing that, if the property stolen is of the value of $20 or more the offence shall be grand larceny, and, if the value is less than $20, the offense shall be petit larceny, with punishments graduated to each offense, the testimony should show property stolen of sufficient value to sustain the sentence imposed by the court.

7. In identifying the property alleged to have been stolen, the evidence must substantially correspond with the description given in the indictment, but this may be done by circumstantial as well as direct proof.

8. Evidence held sufficient to sustain a verdict.

COUNSEL T. A. & B. B. MacDonell, for plaintiff in error.

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

OPINION

MABRY J.

The following indictment was presented against the plaintiff in error, viz.: 'In the name and by the authority of the state of Florida: The grand jurors of the state of Florida impaneled and sworn to inquire and true presentment make in and for the body of the county of Nassau, upon their oaths do present that S. R. Lang, late of the county of Nassau and state of Florida, on the 19th day of March, in the year of our Lord 1900, in the county and state aforesaid, one hundred dollars of the currency of the United States of America, the denomination of which is to the grand jurors unknown, of the value of one hundred dollars, of the property, money, and goods of one Hays Watson, then and there in the possession of the said Hays Watson being found feloniously did steal, take, and carry away, contrary to the statute,' etc. This indictment was signed by the state attorney, indorsed a 'true bill,' over the signature of J. H. Cartwright, foreman of the grand jury, and was presented in open court by the grand jury, and marked 'Filed' by the circuit clerk. The plaintiff in error, upon arraignment, pleaded not guilty, was found guilty by the jury, and sentenced by the court to the state penitentiary for the period of three years.

Motions in arrest of judgment and for a new trial were made, and overruled by the court. The one in arrest of judgment was upon the ground that no true bill was found on the said indictment, or could have been found, as is manifest on the face of the indictment. The overruling of this motion is the first error assigned.

An indictment is defined as 'a written accusation against one or more persons of a crime or misdemeanor, presented to, and preferred upon oath or affirmation by, a grand jury legally convoked.' 'An accusation at the suit of the crown, found to be true by the oaths of a grand jury.' 1 Bouv. Law Dict. (Rawle's Revision) p. 1018. The record evidence in this case is that the indictment was found to be a true bill by a grand jury in a court having jurisdiction of the subject- matter, and was signed, indorsed, and presented as required by statute. The court correctly overruled the motion in arrest on the ground that no true bill was found, or could have been found, on the indictment, as appeared on its face. The indictment itself shows that it was found by a grand jury in the way provided by law, and there is nothing to the contrary shown in any part of the record. Under this assignment of error the argument of counsel in this court is that the indictment is bad because of an insufficient description of the property alleged to have been stolen, but the motion in arrest does not reach or involve this point. Its ground is that no true bill was or could have been found upon the indictment. Our statute provides (section 2440, Rev. St.) that 'whoever commits larceny by stealing of the property of another any money, goods, or chattels, or any banknote, bond, promissory note, bill of exchange or other bill,' and certain other instruments of writing, shall be punished as therein provided; and, whatever may be the extent of the rule under it as to the description of the property alleged to be stolen, we are satisfied that the indictment found in this case is not so fatally defective in this respect as to amount to no indictment. It is well settled in criminal pleading that the omission to state some matters of description not essential constituents of an offense, but which are required to be stated if known, may be excused by an allegation that they were unknown to the indicting grand jury; and this rule has been applied to the description of property in cases of larceny. Com. v. Sawtelle, 11 Cush. 142; Com. v. Grimes, 10 Gray, 470, 71 Am. Dec. 666; People v. Bogart, 36 Cal. 245; State v. Taunt, 16 Minn. 109 (Gil. 99); Du Bois v. State, 50 Ala. 139; Grant v. State, 55 Ala. 201; Leonard v. State, 115 Ala. 80, 22 So. 564; McQueen v. State, 82 Ind. 72; Territory v. Shipley, 4 Mont. 468, 2 P. 313; Territory v. Bell, 5 Mont. 562, 6 P. 60; Haskins v. People, 16 N.Y. 344; Merwin v. People, 26 Mich. 298, 12 Am. Rep. 314; Porter v. State, 26 Fla. 56, 7 So. 145; State v. Shirer, 20 S.C. 392. There is a statement in the present indictment that the denomination of the money alleged to have been stolen was unknown to the grand jury, but we do not consider the sufficiency of the indictment, further than to ascertain that it is not void, as no attack was made upon it in the trial court.

It is further contended that the indictment should not be sustained, as it appeared from the proof introduced in the case that the grand jury could have ascertained the character of the money stolen, and given a more perfect description of it in the indictment. Whether the allegation of the want of knowledge on the part of the grand jury is traversable or subject to inquiry need not be considered in this case, as there was no evidence that the grand jury knew the character or denomination of the money alleged to have been stolen. Com. v. Gallagher, 126 Mass. 54.

The court refused to give the following instruction requested by the accused: 'That the jury have no right to disregard the testimony of the defendant, Lang, on the ground alone that he is the defendant, and stands charged with the commission of a crime. The law presumes the defendant innocent until he is proven guilty, and the law allows him to testify in his own behalf; and the jury should fairly and impartially...