Mizell v. State

• Decision Date: 01 August 1896
• Citation: 38 Fla. 20,20 So. 769
• Parties: MIZELL v. STATE.
• Court: Florida Supreme Court

20 So. 769

38 Fla. 20

MIZELL v. STATE.

Florida Supreme Court

August 1, 1896

Error to circuit court, Lee county; Barron Phillips, Judge.

Morgan B. Mizell was convicted of larceny, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Under section 2449, Rev. St., 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.

2. In an indictment under said section 2449, Rev. St., charging the larceny of any of the domestic animals therein named, it is not necessary to describe the animal stolen by its color fleshmarks, marks, or brands, but it is sufficient if it describes the animal stolen by the general name of the genus to which it belongs, giving the name of its owner; e. g 'one cow, of the property, goods, and chattels, of A. T G. P.'

3. A taking of property without a carrying away, or a carrying away without a taking, is not larceny. The bare finding of a cow at large upon the common range, where everybody's cattle roam at will, with the brand of two persons upon it the one brand appearing to have been put upon it more recently than the other, and its earmarks presenting the appearance of having been altered, with no one claiming it, or in possession or control of it, and with no proof as to how or when, or by whom, the more recent marks and brand were put upon it, and with no proof showing a stealing, taking, and carrying of it away by any one, will not justify a conviction, for the larceny of such cow, of the persons whose brand is thus found to have been recently put upon it.

COUNSEL Wall & Stevens, for plaintiff in error.

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

OPINION

TAYLOR J.

Morgan B. Mizell, the plaintiff in error, was tried and convicted at the spring term, 1896, of the circuit court of Lee county, for the larceny of a cow, and sentenced to two years' imprisonment in the penitentiary, and asks a reversal of such sentence by writ of error. The indictment upon which he was tried was found at the fall term, 1895, of said circuit court, and is as follows (omitting its formal parts): 'That Morgan B. Mizell, late of the county of Lee aforesaid, in the circuit and state aforesaid, laborer, on the thirtieth (30th) day of December, in the year of our Lord one thousand eight hundred and ninety-three, with force and arms, at and in the county of Lee aforesaid, unlawfully, one cow, of the property, goods, and chattels of one A. Traves G. Parkinson, then and there being found, did feloniously and unlawfully take, steal, and carry away, contrary to the form of the statute in such case made and provided,' etc.

At the trial the defendant moved to quash this indictment upon the following grounds: (1) Because said indictment fails to allege the value of the property charged to have been stolen; (2) because it contains no sufficient description of the property alleged to have been stolen; (3) because said indictment is vague, uncertain, and indefinite, in that it does not sufficiently describe the property alleged to have been stolen to put the party on notice of the offense, and to protect him against a new prosecution for the same offense. This motion was overruled, and such ruling is the first assignment of error. There was no error in this ruling. Section 2449 of the Revised Statutes, under which this indictment was found, is as follows: 'Whoever commits larceny by stealing any horse, mare, filly, colt, cow, bull, ox steer, heifer or calf, hog, sheep or goat, the property of another, shall be punished by imprisonment in the state prison not exceeding two years, or by fine not exceeding five hundred dollars.' It will be observed that under this statute the larceny of any of the different animals mentioned receives the same punishment, regardless of its value. The same penalty is prescribed thereby for the larceny of the blooded horse worth $5,000 as for the common calf worth perhaps but $2. The law is well settled that in those cases where the grade of the offense, or the punishment 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 or prove any value. Wells v. State, 11 Neb. 409, 9 N.W. 552; Williams v. State, 10 Tex.App. 8; McDowell v. State, 61 Ala. 172; State v. Pedigo, 71 Mo. 443; Maynard v. State, 46 Ala. 85; Sheppard v. State, 42 Ala. 531; Walker v. State, 50 Ark. 532, 8 S.W. 939; Bish. St. Crimes (2d Ed.) § 427; Rap. Lar. & Kin. Off. §§ 109, 110. The property stolen is described in the indictment simply as being 'one cow.' The contention here is that a more certain and detailed description should have been given, such as its color, marks, or brands, etc. This contention is not sustained by the adjudications upon similar statutes, but, on the contrary, it is held that indictments are sufficient, under such statutes, that simply allege the number and kind or species of animals stolen, in a general way, without any further or more definite description of the particular animal. Grant v. State, 3 Tex.App. 1.

The defendant moved for a new trial upon the ground that the verdict was contrary to the evidence, but the motion was overruled, and this ruling is assigned as error. The evidence in the case was as follows: A. T. G. Parkinson, for the state, testified, that he lived on the Caloosahatchee river in Lee county, in 1893 and 1894, and at that time owned several head of cattle,--four cows and three yearlings,--that ranged near his place; that his mark was bolt in one ear, under slope and upper bit in the other, branded in diamond P; that he last saw those cattle early in December, 1893; that he went away at that time for a little while, and never saw them any more; that he never saw any of them outside his pasture fence; that he never sold any of them to the defendant or any one else. Ziba King, for the state, testified that his occupation was catle-raising, and that he had been engaged in it for 25 years or more; that he was familiar with the marks and brands of cattle in this country; that he knew Parkinson's mark and brand; that he gave the diamond P brand; that in May or June, 1895, he was on the bay, cow-hunting, and saw a yellow heifer in defendant's mark and brand,--that is, upper slope and under bit in one ear, and sharp in the other, and branded diamond K, which is a brand that looks like K's turned face to face. 'The brand appeared to be a rather new brand. The heifer also has a diamond P brand on her, which is the brand of Parkinson. The defendant's brand appeared to be newer than the other one. The diamond P brand had not been defaced, but the defendant's brand had been put on in a different place. I do not know whose heifer it was. I only judged by the brand that it belonged to Parkinson. I do not know of any one else in this country giving the diamond P brand. I don't recollect any one but the defendant giving the diamond K brand. The mark appeared to be an altered mark.' Richard Bass, for the state, testified that his occupation was cow-hunting; that he was in the employ of Ziba King; that he was familiar with the marks and brands of cattle in Lee county, and knew the mark and brand of Parkinson, and some of the marks of the defendant; that the defendant gives upper slope and under bit in one ear, sharp in the other, and brands diamond K (two K's facing each other). 'In May, 1895, I saw some cattle in this mark and brand. We penned some cattle in pens on the bay. There were two head of cattle in the bunch in the defendant's mark and brand,--a yellow cow and a brindle steer yearling. The mark was over slope and under bit in one ear, sharp in the other, branded with a diamond P brand on the hip, and a diamond K brand on the side. The defendant claimed to give that mark and brand. The marks on the cow's ears were not very plain, but it was an altered mark. I don't know any one else in this country who gives the diamond P brand, except Parkinson, and no one who gives the diamond K brand, except the defendant. I do not know of the defendant making any changes in his...