Mckenna v. State

• Decision Date: 28 December 1934
• Citation: Mckenna v. State, 119 Fla. 576, 161 So. 561 (Fla. 1934)
• Parties: McKENNA v. STATE.
• Court: Florida Supreme Court

161 So. 561

119 Fla. 576

McKENNA v. STATE.

Florida Supreme Court

December 28, 1934

On Rehearing April 16, 1935.

Further Rehearing Denied June 5, 1935.

Error to Circuit Court, Brevard County; M. B. Smith, Judge.

James McKenna was convicted of grand larceny, and he brings error.

Reversed and remanded for a new trial.

On Rehearing.

COUNSEL Noah B. Butt, of Titusville, and L. R. Baker of West Palm Beach, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

Writ of error here is to review judgment of conviction of grand larceny. The subject of larceny alleged was forty boxes of grapefruit of the value of $54. The amount and value of the fruit, together with its felonious asportation by the accused, was sufficiently established by substantial proof.

It is contended that one may not be prosecuted for grand larceny of grapefruit which he has stolen from trees because it is not the subject of larceny. This contention is not tenable. See Summerlin v. Orange Shores, Inc., 97 Fla. 996, 122 So. 508, where we held such fruits of trees to be chattels. Also see Curington v. State, 80 Fla 494, 86 So. 344.

It is also contended that the provisions of section 5266, R. G. S., section 7385, C. G. L., precludes the prosecution for the offense of grand larceny where the facts are as those presented here. That section is designed to denounce and punish the severing of fruit and crops from the freehold as a trespass, but it was never intended to be used as a shield from prosecution for larceny where the facts warrant such prosecution.

Accused was indicted at the spring term of the circuit court of Brevard county, was arraigned, and pleaded 'not guilty.' Then, on motion of accused, the case was continued until the next term of the court. At that term of the court accused filed a motion to be allowed to withdraw his plea in bar and to file a plea in abatement. He tendered his proposed plea in abatement. The plea did not allege sufficient facts to constitute a good plea even if it had been timely filed. A plea in abatement must be filed before the entry of a plea in bar. Lake v. State, 100 Fla. 373, 129 So. 827, 131 So. 147. In 8 R. C. L. 113, it is said:

'Where a defendant desires to take advantage of irregularities occurring before arraignment he should specially plead them in abatement of the proceeding. Defects in the indictment are thus to be taken advantage of, as, for instance, that it is not signed by the foreman of the grand jury. This plea is proper in the case of irregularities not apparent of record as well as in those that are so apparent, and it is sometimes provided by statute that when extrinsic facts are relied on they must be supported by proof of the truth thereof by affidavit or other evidence. As to the time of pleading, such a plea must always precede the plea of not guilty, because a plea of not guilty waives all precedent irregularities.'

Other assignments of error have been examined, and we find no reversible error.

Judgment affirmed.

DAVIS, C.J., and WHITFIELD, and TERRELL, JJ., concur.

On Rehearing.

PER CURIAM.

Rehearing was granted in this case after opinion filed for consideration of the single question as to whether or not the failure of the trial court to charge the jury concerning the law of the presumption of innocence without there being a special request for such charge constitutes reversible error.

The rule is thoroughly established both in the United States and Great Britain that one charged with a criminal offense is in law presumed to be innocent, and that presumption obtains in favor of the accused throughout every stage of the trial until his guilt has been proven to the exclusion of every reasonably doubt. This presumption of law should be explained to every jury impaneled to try a criminal case, and, if a charge to that effect is requested by the defendant and refused by the court, such refusal would constitute reversible error.

In the case of McDonald et al. v. State of Florida, 55 Fla 134, 46 So. 176, 178, which opinion was rendered in 1908, this court, speaking through Mr. Justice Whitfield, said:

'The court charged the jury that before a conviction could be had the state must prove the guilt of the accused, and that if, from the evidence, a reasonable doubt rests upon their minds of the guilt of the defendants, or any one of them, the jury should acquit them, or either of them, to whom such reasonable doubt applies. No other charges were requested as to the presumption of innocence of the defendants, and they cannot complain of an entire failure of the court to charge on this point, in view of the charge given as above stated.'

It has been repeatedly held in this jurisdiction that: 'Error can not be assigned upon the judge's failure to charge upon any question of law unless the party desiring it shall have requested the desired instruction. See Carter v. Bennett, 4 Fla. 283; Cato v. State, 9 Fla. 163; Reed v. State, 16 Fla. 564; Lungren v. Brownlie, 22 Fla. 491; Blount v. State, 30 Fla. 287, 11 So. 547; Carr v. State, 45 Fla. 11, 34 So. 892; Lindsey v. State, 53 Fla. 56, 43 So. 87; Pugh v. State, 55 Fla. 150, 45 So. 1023; Key West v. Baldwin, 69 Fla. 136, 67 So. 808; Herndon v. State, 73 Fla. 451, 74 So. 511; Cross v. State, 73 Fla. 530, 74 So. 593; Hobbs v. State, 77 Fla. 228, 81 So. 444; Witt v. State, 80 Fla. 38, 85 So. 249; Cason v. State, 86 Fla. 276, 97 So. 720; Stanley v. State, 93 Fla. 372, 112 So. 73; Peninsular Naval Stores Co. v. Mathers, 96 Fla. 620, 119 So. 333.'

See, also, Miller v. State, 76 Fla. 518, 80 So. 314, and Merchants' Transportation Co. v. Daniel, 109 Fla. 496, 149 So. 401; Leavine v. State, 109 Fla. 447, 147 So. 897.

In the instant case the court charged the jury, amongst other things, as follows:

'To the indictment the defendant has plead not guilty and this plea of the defendant imposes the burden and duty upon the state of proving to your satisfaction, by competent evidence, beyond all reasonable doubt, all material elements of the offense charged in said indictment, and the guilt of the defendant, before you would be warranted or authorized in convicting him of such offense.'

And also:

'I further charge you that if you believe from the evidence in this case, and beyond all reasonable doubt, that the defendant James McKenna on the 16th day of February A. D. 1933, or at any other time within two years prior to the finding of the indictment herein, in Brevard County, Florida, unlawfully and feloniously forty (40) boxes of grapefruit of the value of $54.00, a more particular description of which is to the grand jurors unknown, of the goods, chattels, and property of one R. C. Black, then and there being found did feloniously and unlawfully steal, take and carry away as charged in the indictment herein, it will be your duty to find the defendant guilty as charged; if you do not so believe, or if you have a reasonable doubt about it, you will find the defendant not guilty.'

The record shows no request for any additional charge with reference to presumption of innocence or the burden of proof. Exception noted concerning the charge was: 'Exception noted for defendant as to each of the foregoing charges.'

For the reasons above stated, and as it does not appear from the record that there was an exception to the failure of the court to charge the jury in regard to the legal principle of presumption of innocence in favor of the defendant, we cannot say that his omission to do so constituted reversible error without departing from the established rule which appears to have existed in this state since the filing of opinion in the case of McDonald et al. v. State, supra. But an examination of that part of the charge last above quoted reveals the fact that the court in effect charged the jury that they must convict the defendant James McKenna of the offense of grand larceny or else find him not guilty. Under the indictment, the jury could have found the defendant guilty of either grand larceny or petit larceny, to be determined upon the value of the property as shown by the evidence. The evidence as to the value of the property was unsatisfactory and conflicting. There was substantial evidence to show that the value of the property involved was less than $50; also there was some evidence to show that the value was of more than $50. Under this state of facts, the defendant was entitled to have the court charge sua sponte that, if the jury believed the defendant was guilty of larceny, then it would be their duty to determine the value of the property stolen, and if from the evidence, or lack of evidence, there was a reasonable doubt in the minds of the jury as to whether the value of the property was $50 or more, then they should find the defendant guilty of the lesser offense of petit larceny, if the jury was convinced beyond a reasonable doubt that the defendant was guilty of larceny of the property as alleged in the indictment of some value.

When we consider all these elements together, the fact that the court did not charge on the presumption of innocence in favor of the defendant as a matter of law, that the proof of the value of the property alleged to have been stolen was extremely conflicting and unsatisfactory, and the court failed to charge the jury that they could convict the defendant under the indictment of either grand or petit larceny, if the proof warranted either of such convictions, and that, if there was a reasonable doubt only as to whether the value of the property was more than $50 or less than $50, the defendant would be entitled to the benefit of such doubt and they should in such case convict him of the lesser offense, the...