Mobley v. State
| Decision Date | 20 April 1909 |
| Citation | 57 Fla. 22,49 So. 941 |
| Parties | MOBLEY v. STATE. |
| Court | Florida Supreme Court |
Headnotes Filed June 29, 1909.
In Banc. Error to Criminal Court of Record, Hillsborough County Horace C. Gordan, Judge.
H. O Mobley was convicted for the larceny of a cow, and he brings error. Reversed.
Macfarlane & Davis, for plaintiff in error.
Park Trammell, Atty. Gen., for the State.
The plaintiff in error was informed against, tried, convicted, and sentenced in the criminal court of record of Hillsborough county for the larceny of one cow, and brings the case here for review by writ of error.
The information is predicated upon section 3299, Gen. St. 1906, that provides 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 charged the defendant with the larceny of 'one cow, a further description whereof is to the solicitor unknown.' The proofs adduced at the trial, without any conflict, showed that the animal stolen was a three or four year old steer.
The defendant requested the court to instruct the jury as follows: 'It is incumbent upon the state of Florida to prove every material allegation in the information in this case upon which the defendant is being tried, and if the jury believe from the evidence in this case that the said animal alleged to have been stolen was a steer, and not a cow, the jury must acquit the defendant.' But the court refused to so instruct the jury, and this refusal is assigned as error. This ruling was error.
The statute under which the information was laid recognizes a difference and a distinction between a cow and a steer, as there is in fact; the one being a full grown female of the bovine genus, and the other being a castrated male of the same genus. And where, as in this case, the information charges the larceny of a cow, the crime cannot be made out by proof of the larceny of a steer. The King v. Cook, 1 Leach, C. L. 105, 2 East, P. C. 616; State v. Lange, 22 Tex. 591; State v. McLain, 2 Brev. (S. C.) 443; State v. McMinn, 34 Ark. 160; Territory v. Marinez (Ariz.) 44 P. 1089; State v. Royster, 65 N.C. 539; Cameron v. State, 9 Tex. App. 332; Courtney v. State, 3 Tex. App. 257.
The variance between the allegation and the proof was fatal...
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Mathis v. State
... ... 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 ... 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 ... ...
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Sessions v. State
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