Lee v. Tucker

• Decision Date: 28 June 1949
• Citation: 42 So.2d 49
• Parties: LEE v. TUCKER, Sheriff.
• Court: Florida Supreme Court

Page 49

42 So.2d 49

LEE v. TUCKER, Sheriff.

Supreme Court of Florida, Division B.

June 28, 1949.

Rehearing Denied Sept. 20, 1949.

Whitaker Brothers, Tampa, for petitioner.

Richard W. Ervin, Attorney General, and George M. Powell, Assistant Attorney General, for respondent.

SEBRING, Justice.

In William E. Lee v. Todd Tucker, as Sheriff, Fla., 37 So.2d 582, the petitioner instituted a habeas corpus proceeding in this court to test the sufficiency of an information which attempted to charge him with the burning of a certain building insured against loss by fire with intent to injure and defraud the insurer, in violation of section 806.06 Florida Statutes, 1941, F.S.A. The information was held insufficient for reasons stated in the opinion of this court, and the petitioner was discharged from custody. Subsequently, the prosecuting authorities filed another information against petitioner based upon the same general subject matter and he is now before this court challenging the sufficiency of the information under which he is presently being held.

The present information is drawn under section 806.06, Florida Statutes, 1941, F.S.A., which provides, in part, that any person "who willfully and with intent to injure or defraud the insurer * * * causes to be burned or * * * counsels or procures the burning of any building * * * which shall at the time be insured * * * against loss or damage by fire, shall be guilty of a felony * * *."

The challenged information charges, in substance, that the petitioner, on August 11, 1947, with intent to injure and defraud Michigan Fire and Marine Insurance Company, a fire insurance company, unlawfully and wilfully counseled and procured the burning of a building then and there insured against fire by said insurer, and did cause said building to be burned, by counselling and procuring one Allen to burn and cause said building to be burned and that Allen, in furtherance of and pursuant to said counsel and procurement of and by petitioner and in execution thereof and in behalf of petitioner, did procure and cause said building to be burned by unlawfully and wilfully arranging with and procuring one Mitchell to set fire to and burn the building, that Mitchell pursuant to the counsel and procurement aforesaid did unlawfully and wilfully set fire to said building.

The petitioner maintains that the information wholly fails to charge the petitioner with the commission of any crime or to advise him of the nature and cause of the accusation against him.

The contention is not well founded. In William E. Lee v. Todd Tucker, as Sheriff, supra, it was held that "he who procures a felony to be committed is himself a felon, though the criminal act done is by the intervention of a third person. McDaniel and others, Foster's Crown Law, p. 121. However, before one may be held accountable for a crime committed by another it must appear that there has been some communication between the persons involved sufficient to establish the fact of a criminal connection between such persons and that the crime was committed by the counsel, procurement or instigation of the first mover."

The gist of the charge in the information is that the petitioner with intent to defraud the insurance company wilfully caused a certain building insured by said company to be burned by counselling and procuring one Allen to burn and cause the building to be burned; that in furtherance of and pursuant to said counsel and procurement and in execution thereof and in behalf of the petitioner the said Allen caused the building to be burned by...