Mathis v. State
| Decision Date | 13 July 1915 |
| Citation | 69 So. 697,70 Fla. 194 |
| Parties | MATHIS et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Hillsborough County; Lee J Gibson, Judge.
John Mathis and others were convicted of larcenty of a heifer, and bring error. Affirmed as to defendants John Mathis and A. C Harrison, and writ of error dismissed as to J. C. McDonald.
Syllabus by the Court
Assignments of error, predicated upon alleged facts and rulings that are not disclosed by the record, cannot be considered by an appellate court.
An assignment of error, based upon the refusal of the court to give a requested charge, cannot be considered by the appellate court, where the transcript does not show, except by the motion for a new trial, that such a charge was requested, as the motion is not self-supporting.
Where a requested charge is refused, it must be set out in the bill of exceptions with the refusal to give it and the exception taken thereto. The refusal to give a requested charge should be excepted to at the refusal, and cannot be excepted to in a motion for a new trial.
Where the information charges the larceny of a heifer, and the testimony shows that the animal stolen was a female 'calf about a year and a half old and still sucking,' this does not constitute a fatal variance, especially where the trial court did not find it prejudicial to the defendants or material to their defense.
Under section 3299 of the General Statutes of Florida, 1906, the penalty thereby prescribed follows the larceny of any of the domestic animals therein named, regardless of their value. In such cases, where the grade of the offense or the penalty prescribed therefor is not measured by or dependent upon the value of the property stolen, but is determined entirely by the class or species of such property, it is not necessary in an indictment charging its larceny, to allege any value neither is it necessary to prove any value.
Words in an indictment that are not necessary or essential to describe or charge the offense, and that are not descriptive of any matter necessary to be proved, and that may be dispensed with without destroying or materially changing any essential allegation in such indictment, may be rejected as surplusage.
In determining the correctness of charges and instructions, they should be considered as a whole; and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which, standing alone, might be misleading, must fail.
COUNSEL Dozier A. De Vane, of Tampa, for plaintiffs in error.
T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
An information was filed against John Mathis, A. C. Harrison and J. C. McDonald, charging them with the crime of larceny of a heifer. A trial was had before a jury, which resulted in a verdict of guilty being returned against all three defendants, who attempted to bring the case here for review, but we had to dismiss the writ of error for want of a final judgment. Mathis v. State, 67 Fla. 277, 64 So. 944. Upon the going down of the mandate, the trial court sentenced John Mathis and A. C. Harrison each to confinement in the state prison at hard labor for a period of two years. The transcript recites that, 'J. C. McDonald not appearing, his bond was estreated and a capias issued for his rearrest.' Another writ of error was sued out on behalf of and in the names of all three defendants, but such writ must again be dismissed as to J. C. McDonald for want of any final judgment as to him. Assignments of error have been filed by all three defendants, though John Mathis alone has submitted briefs. We might, of our own motion, dismiss the writ of error as to A. C. Harrison for his failure to file briefs in accordance with the requirements of rule 20, adopted the 18th day of July, 1908, and found prefixed to 55 Fla. xi, and 45 South. v, but since no motion to dismiss has been filed by the state and we have acquired jurisdiction of A. C. Harrison, we shall treat the brief as submitted on behalf of him as well as John Mathis.
Eighteen errors are assigned, but we shall not discuss them in detail, and shall consider only those which we think merit treatment. Some of the errors assigned have no basis in the transcript; therefore are not before us for consideration. As we held in Smith v. State. 65 Fla. 56, 61 So. 120, assignments of error predicated upon alleged facts and rulings that are not disclosed by the record cannot be considered by an appellate court. As we have repeatedly held, an assignment of error based upon the refusal of the court to give a requested charge cannot be considered by the appellate court where the transcript does not show, except by the motion for a new trial, that such a charge was requested, as the motion is not self-supporting. Where a requested charge is refused it must be set out in the bill of exceptions, with the refusal to give it and the exception taken thereto. The refusal to give a requested charge should be excepted to at the time of the refusal, and cannot be excepted to in a motion for a new trial. See Clark v. State, 59 Fla. 9, 52 South. 518, and authorities there cited, and Smith v. State, supra. In accordance with this holding, we can consider none of the assignments predicated upon requested and refused instructions.
It is strenuously urged that there is a fatal variance between the information and the proof adduced at the trial, in that the information charges the defendants with the larceny of a heifer, while 'the testimony discloses the theft of one calf.' To this contention we cannot agree. It is true that the information charges the larceny of a heifer, and the testimony shows that the animal stolen was a female 'calf about a year and a half old and still sucking.' The statute upon which the information evidently was based is section 3299 of the General Statutes of Florida, which reads as follows:
'Whoever commits larceny by stealing any horse, mule, mare, filly, colt, cow, bull, ox, steer, heifer, or calf, the property of another, shall be punished by imprisonment in the state prison not less than two years nor more than five years.'
It is true that in Mobley v. State, 57 Fla. 22, 49 So 941, 17 Ann. Cas. 735, which is cited to us by the plaintiffs in error, we held as follows: Where the statute makes it a felony to commit larceny of 'any * * * cow, bull, ox, steer, heifer or calf,' an information charging the larceny of one cow is not sustained by proofs showing, without dispute, that...
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