Long v. State

• Decision Date: 28 July 1900
• Citation: 28 So. 775,42 Fla. 509
• Parties: LONG et al. v. STATE.
• Court: Florida Supreme Court

28 So. 775

42 Fla. 509

LONG et al. v. STATE.

Florida Supreme Court

July 28, 1900

Error to criminal court of record, Orange county; Cecil G. Butt Judge.

James Long, Julius Ott, and others were convicted of taking away property, part of the realty, and bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. An indictment under section 2516, Rev. St., need not allege that defendant severed from the realty the property alleged to have been carried away, nor that the trespass was committed without the consent of the owner of the land, where it is charged that it was willfully committed; and a description of the realty trespassed upon as 'the land of E. F. S., to wit, a pinery located on the northeast quarter of the northwest quarter of section two, township twenty-three south, range twenty-nine east,' is sufficiently definite.

2. Pineapple plants growing in the soil are parcel of the realty, within the meaning of section 2516, Rev. St., and not farm products or fruit, within the meaning of section 2517 Rev. St., as amended by chapter 4531, Act 1897.

3. Under section 2893, Rev. St., it is not error to refuse to quash an information upon the ground that it charges several distinct felonies in separate counts, unless such information is so vague, indistinct, and indefinite as to mislead the accused, 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.

4. Proof that the title to and management of a pinery alleged to have been trespassed upon were in the person alleged in the information is sufficient to sustain the allegation as to ownership, even though the proof shows further that other persons were interested in the profits of the pinery.

5. In order to convict one accused of willfully committing a trespass upon realty by taking and carrying away therefrom pineapple plants, parcel of the realty, the proof must show that the particular plaints alleged to have been taken were in fact taken; but it is not necessary that the particular plants be produced before the jury, or if produced along with others of the same character and variety, that witnesses should be able to separate the identical plants taken from the others; nor should the testimony of a witness tending to show that the identical plants taken are part of a mass of plants of like variety and character produced before the jury be excluded because such witness is unable to separate from the general mass the identical plants taken.

6. Instructions based upon a theory not sustained by the evidence, or which are substantially covered by other instructions given by the court, are properly refused.

7. Where two or more persons are charged, under section 2516 Rev. St., with willfully committing a trespass by carrying away something which is parcel of the realty, the offense is joint and several, and any one or more of the accused may be found guilty, if the evidence justifies it, even though the others are not proven to have been connected in any manner with the commission of the offense.

8. An instruction to the effect that in a case of circumstantial evidence, where the criminative circumstances are either denied by the defendants, or are explained in such a way as to render their guilt doubtful, it is the duty of the jury to acquit the accused, is erroneous, and ought to be refused.

9. An instruction that, where defendants charged with criminal trespass upon realty give a natural and reasonable explanation of their possession of the property alleged to have been taken, it then devolves upon the state to prove beyond a reasonable doubt that such explanation is false and, if such explanation be not shown by the state to be false beyond a reasonable doubt, it is the duty of the jury to acquit the accused, is erroneous, and ought to be refused.

10. It is proper to refuse instructions, as misleading, when they are based on the theory of a party as to facts in evidence, and ignore the effect of other facts applicable to the relation and rights of the parties.

11. Upon the trial of an information based on section 2516, Rev. St., for willful trespass upon another's land by carrying away something which is parcel of the realty, alleged to be of a value exceeding $20, the defendant may be found guilty, even though the value of the property carried away be shown to be less than $20; but in that case the verdict should state the exact value of the property, or that its value is less than $20, in order that the court may impose the penalty prescribed for the offense where the value of the property does not exceed $20.

12. Where the defense interposed in a criminal case is an alibi, and evidence tending to prove it is introduced, and the court in its instructions makes no reference to the defense of alibi, it is error to refuse an instruction to the effect that it is not necessary that the defendants shall prove an alibi beyond a reasonable doubt, that it is sufficient if the evidence offered to prove it raises a reasonable doubt in the mind of the jury whether or not the accused was at the scene of the crime and participated therein, and that in such cases it is the duty of the jury to acquit the accused.

13. Upon the trial of an information drawn under section 2516, Rev. St., for willful trespass upon the land of another by carrying away pineapple plants, parcel of the realty, an instruction that before the jury can convict the accused of severing, taking, and carrying away the pineapple plants charged in the information, it must be proved beyond a reasonable doubt that they took them for the purpose of converting them to their own use; that, to constitute the offense charged, an intention upon the part of the defendants to benefit or gain by the taking is essential, and the accused cannot be convicted unless such intention is proved beyond a reasonable doubt,--is erroneous, and ought to be refused.

14. An accused person on trial for an offense is presumed to be innocent until his guilt is proven beyond a reasonable doubt, and he has a right to have the jury so instructed.

COUNSEL

Alex. St. Clair-Abrams, for plaintiffs in error.

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

OPINION

CARTER J.

On September 11, 1899, in the criminal court of record of Orange county, an information was filed against plaintiff in error and Preston Long and Lige Sweet, containing four counts. The first charged that all of said parties, 'in and upon the land of E. F. Sperry, to wit, a pinery located on the northeast quarter of the northwest quarter of section two, township twenty-three south, range twenty-nine east, did unlawfully and willfully enter, and willfully commit a trespass, by taking and carrying away therefrom two hundred and seventy-four pineapple plants, the same being a parcel of the realty, of the value of twenty-five cents each, and of the total value of sixty-eight dollars and fifty cents, of the property of the said E. F. Sperry, against the form of the statute,' etc.

The second charged that James Long, Gettis Long, Julius Ott, and Lige Sweet, 'in and upon the land of E. F. Sperry, to wit, a pinery located on the northeast quarter of the northwest quarter of section two, township twenty-three south, range twenty-nine east, did unlawfully and willfully commit a trespass, by taking and carrying away therefrom two hundred and seventy-four pineapple plants, the same being a part of the realty, of the value of twenty-five cents each, and of the total value of sixty-eight dollars and fifth cents, of the property of the said E. F. Sperry, and that, before the commission of the said trespass and felony, Preston Long, late of the county aforesaid, laborer, on the 15th day of July, A. D. 1899, at and in the county of Orange, state of Florida, aforesaid, did feloniously counsel, aid, incite, and procure the said James Long, Gettis Long, Julius Ott, and Lige Sweet to commit in manner and form aforesaid the said trespass and felony, against the form,' etc.

The third charged all the defendants with larceny of 274 pineapple plants, of the value of 25 cents each, the property of E. F. Sperry.

The fourth charged James Long, Gettis Long, Julius Ott, and Lige Sweet with larceny of 274 pineapple plants, of the value of 25 cents each, the property of E. F. Sperry, and charged Preston Long with being an accessory before the fact of such larceny. Each count alleged that the offense was committed in Orange county on July 15, 1899.

Upon the trial the court, among other things, instructed the jury to confine their deliberations to the charge in the first count of the information, and that there was no evidence showing the defendants to be guilty of larceny, and to find Preston Long and Lige Sweet not guilty, as there was no evidence implicating them. The jury found Preston Long and Lige Sweet not guilty, and the other defendants guilty, and from the sentences imposed this writ of error is taken.

The assignment of errors embraces 42 grounds. As we reverse the judgment and direct a new trial, we shall consider only such of the alleged errors as we deem material in view of the new trial.

A motion to quash, and also a motion in arrest of judgment were made and overruled, and these rulings are assigned as error. Under these motions it was insisted: First. That the first and second counts fail to charge an offense under the laws of Florida; fail to state all the facts and circumstances which constitute the offense described in section 2516, Rev. St.; fail to allege that defendants severed the pineapple plants from the realty; fail to allege that the trespass was committed without the consent of the owner or owners of the land described in the information; and fail to state...