Menefee v. State
| Decision Date | 08 February 1910 |
| Citation | 51 So. 555,59 Fla. 316 |
| Parties | MENEFEE v. STATE. |
| Court | Florida Supreme Court |
Headnotes Filed March 14, 1910.
In Banc. Error to Circuit Court, Lake County; W. S. Bullock Judge.
J. W Menefee was convicted of larceny, and brings error. Reversed and new trial granted.
Syllabus by the Court
Error if any, in acting upon motions to quash and for a bill of particulars and upon the legal sufficiency of pleas in abatement, in the absence of the accused in felonies not capital, is cured by an order for the resubmission of these matters in his presence.
A plea in abatement that three of the grand jurors were not on the list as made out and recorded by the county commissioners is defective in not negativing other legal methods of securing jurors.
Upon trial for larceny of fertilizer, it may be shown that the accused, who was not in that business, but had access to that of his employer, sought out a customer.
To prove possession of goods by a railroad company on trial for larceny, a private receipt purported to be signed 'J. H. T., per F. M. G. (?)' is not competent evidence upon testimony that the witness knew T.'s handwriting, and that T. was the agent of the railroad company.
One serving a term in the state's prison for forgery and against whom other unnamed indictments are pending is not an approver and incompetent as a witness against one being tried for larceny.
The court is not required to give the affirmative charge in criminal cases.
A general verdict of guilty on a count charging grand larceny is not fatally defective in form, and will support a conviction for grand larceny.
COUNSEL J. H. Jones, for plaintiff in error.
Park Trammell, Atty. Gen., for the State.
An indictment was found in the circuit court for Lake county against J. W. Menefee, consisting of three counts. In the first he was charged with the larceny of 'thirty-five sacks of fertilizer, a more particular description of which is to the grand jurors unknown, of the value of three dollars per sack, of the total value of one hundred and five dollars' of the property of the Atlantic Coast Line Railroad Company, a corporation. In the second he is charged with the embezzlement of the fertilizer, and in the third count the property was laid in W. F. Bozeman. He was found guilty and sentenced under the first count.
The transcript is in great confusion, being brought up under the rules provided for civil cases, but we are able to glean the following facts: A plea of not guilty was by consent of the court withdrawn, and the defendant interposed by counsel motions to quash, and for a bill of particulars, and also a plea in abatement, all of which were overruled or held bad, and all or some of which were argued and acted upon while the defendant was not personally present. Immediately upon the attention of the judge being called to this absence, he had him brought into court, rescinded all he had done and ordered. The defendant and his counsel were given the opportunity to present anew the matters with full opportunity for argument, and his rulings were again made denying the motions and sustaining a demurrer to the plea.
In the Adams Case, 28 Fla. 511, text 555, 10 So. 106, this court emphasized the important duty in capital cases resting upon the trial court of seeing that the accused is personally present at all proceedings in the cause, that he might hear what was being said, and we think the same care should be observed in all trials for felony, but we did not say that the failure to do so would result in a reversal, and in that case the proceedings were in the midst of the actual trial. Suppose we should admit that one accused of felony has an absolute right to be present at the argument of the purely legal points involved in these motions and demurrers had in advance of trials of fact, what are we asked to do or what could we do more than was done? The same judge who has passed upon these matters twice we might by our reversal order to pass upon them again. Surely this would be the height of technicality, and cannot be tolerated. Upon the authority of what was said in Williams (R) v. State, 42 Fla. 210, 27 So. 869, it may well be doubted if the right to be present exists.
There is no merit in the motions or in the plea in abatement. The indictment is sufficiently definite to apprise the accused of the offense charged, nor do we see either from the face of the first count or from the evidence any occasion for a bill of particulars.
The plea in abatement sets up that three of the grand jurors were not on the list made out by the county commissioners and recorded in their minutes. Such pleas are strictly construed and must answer all supposable cases. Taylor v. State, 49 Fla. 69, 38 So. 380; Colson v. State, 51 Fla. 19, 40 So. 183; Thomas v. State, 58 Fla. ----, 51 So. 410. For aught that appears in the plea the judge may have exercised his power to get the grand jury from the body of the county or otherwise, and it does not appear that these jurors...
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...10 So. 106; Lovett v. State, 29 Fla. 356, 11 So. 172; Summeralls v. State, 37 Fla 162, 20 So. 242, 53 Am. St. Rep. 247; Menefee v. State, 59 Fla. 316, 51 So. 555; Blocker v. State, 60 Fla. 4, 53 So. 715. The case Williams v. State, 42 Fla. 210, 27 So. 869, holds merely that the record need ......
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...573, 29 So. 410, 89 Am. St. Rep. 237; Long v. State, 42 Fla. 612, 28 So. 855; Johnson v. State, 51 Fla. 44, 40 So. 678. In Menefee v. State, 59 Fla. 316, 51 So. 555, the was indicted upon a charge of grand larceny. The verdict was guilty. It was held that the verdict should be read in the l......