Neumann v. State

• Decision Date: 04 August 1934
• Citation: 116 Fla. 98,156 So. 237
• Parties: NEUMANN v. STATE.
• Court: Florida Supreme Court

156 So. 237

116 Fla. 98

NEUMANN v. STATE.

Florida Supreme Court

August 4, 1934

En Banc.

M. M Neumann was convicted of aiding in the commission of a felony, and he brings error.

Reversed and remanded. Appeal from Criminal Court of Record, Dade County; E. C. Collins, judge.

COUNSEL

James M. Carson and George A. Worley, both of Miami, for plaintiff in error.

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

OPINION

DAVIS Chief Justice.

M. M Neumann, the plaintiff in error, was convicted on two counts of an information charging him with a violation of sections 7405, 7406, C. G. L., sections 5285, 5286, R. G. S., and sentenced therefor to imprisonment in the state prison for a period of five years. The case is now before us on writ of error to the judgment aforesaid.

The counts of the information upon which the judgment of conviction was rendered were as follows:

'And the said Fred Pine, County Solicitor for the County of Dade, prosecuting for the State of Florida, in the said county, under oath, further information makes that Emory. Burton, Bunny Rogers and Warren D. Fletcher, of the County of Dade and State of Florida, on the 23rd day of March, in the year of our Lord one thousand nine hundred and thirty-three, in the County and State aforesaid, did then and there wilfully and maliciously, by the explosion of certain explosive substance, to-wit, dynamite, a further and more particular description of which said substance is to the County Solicitor unkown, unlawfully injure a certain one-story concrete block stucco building located at No. 2343 Northwest Seventh Avenue, in the City of Miami, Dade County, Florida, then and there the property of Pearl Estell Fox and Louis M. Fox, who were then and there occupying and doing business in said building under the firm name of Star Cleaners and Dyers, a further and more particular description of the ownership, possession and occupancy of said building being to the County Solicitor unknown, and that the said M. M. Neuman, Leila M. Rumbaugh and W. D. Rumbaugh did then and there aid in the commission of the felony aforesaid, by counseling, hiring and otherwise procuring the commission thereof, contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Florida.'

'And the said Fred Pine, County Solicitor for the County of Dade, prosecuting for the State of Florida, in the said County, under oath, further information makes that Emory Burton, Bunny Rogers, and Warren D. Fletcher, of the County of Dade and State of Florida, on the 23rd day of March, in the year of our Lord one thousand nine hundred and thirty-three, in the County and State aforesaid, did then and there wilfully and maliciously throw into, against, and upon, and put, place, and explode, and cause to be exploded in and upon a certain one story concrete block stucco building located at No. 2342 Northwest Seventh Avenue, in the City of Miami, Dade County, Florida, then and there the property of Pearl Estell Fox and Louis M. Fox, who were then and there occupying and doing business in said building under the firm name of Star Cleaners and Dyers, a further and more particular description of the ownership, possession and occupancy of said building being to the County Solicitor unknown, certain explosive substance, to-wit, dynamite, a further and more particular description of which said substance is to the County Solicitor unknown, with intent unlawfully to destroy and injure said building, and any person and property therein, and that said M. M. Neuman, Leila M. Rumbaugh and W. D. Rumbaugh, did then and there aid in the commission of the felony aforesaid, by counseling, hiring, and other wise procuring the commission thereof, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.'

Motion was made to quash the information and each and every count thereof severally on the ground that no count of such information charges any crime under the laws of Florida against the defendant, M. M. Neumann, who interposed the motion. The motion to quash was overruled, and the case proceeded to trial. It is unnecessary to consider any of the assignments of error except that relating to the sufficiency of the information as against Neumann.

Section 7110, C. G. L., section 5008, R. G. S., reads as follows: 'Whoever aids in the commission of a felony, or is accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon.'

This section not only prescribes the manner in which the accessory before the fact to felony shall be punished, but it also defines an accessory before the fact to a felony. It is contended on behalf of the state in its brief filed in support of the affirmance of the judgment that the information was designed to charge the defendant Neumann as an accessory before the fact and not as a principal in the second degree. We therefore inquire whether or not the information is fatally defective as a charge against Neumann of being an accessory before the fact to the commission of the felony otherwise described in the two counts of the information upon which he was convicted. It is pertinent to add that the judge of the court below dealt with Neumann in his judgment of conviction as having been convicted as an accessory before the fact, and not as a principal in the second degree.

In both the second and fourth counts of the information, the stated charge against Neumann is that he did 'then and there aid in the commission of the felony aforesaid,' after which it is further alleged that the manner of his aiding in the commission of the felony was by 'counseling, hiring and otherwise procuring the commission thereof.'

There is under the common law and under our statutes a clear and marked distinction between a principal in the second degree and an accessory before the fact. The effect of section 7110 C. G. L., section 5008, R. G. S., is not to do away with the common-law distinction between principals in the second degree and accessories before the fact, but merely to provide for the punishment of each of them in like...