Penny v. State
| Decision Date | 29 September 1939 |
| Citation | 191 So. 190,140 Fla. 155 |
| Parties | PENNY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Leon County; J. B. Johnson, Judge.
Mose Penny was convicted of second degree murder, and he brings error.
Reversed.
C. N. Ashmore and W. C. Hodges, both of Tallahassee for plaintiff in error.
George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for the State.
The first count in the indictment in this case charged Central Holmes with the first degree murder of Lenora Reed, by shooting her with a pistol. The second count, upon which this plaintiff in error was tried, charged him with being an accessory before the fact to the commission of the crime charged in the first court. The third count charged him with being an accessory after the fact, or attempted to do so, but this count was quashed by the court on motion of the defendant.
Said second count charged that plaintiff in error 'before the commission of the crime aforesaid in manner and form aforesaid * * * by the said Central Holmes, did feloneously and from a premeditated design to effect the death of said Lenora Reed, counsel, aid, incite and procure the said Central Holmes to commit the crime aforesaid, to-wit: * * *'
This count manifestly charged the defendant with being an accessory before the fact. It charges that, before the commission of the crime, he did counsel, aid, incite and procure Central Holmes to commit such crime. In spite of the fact that this court embraces the word 'aid', this does not transform it into an indictment against this plaintiff in error, Mose Penny, as a principal in the second degree, because said cound nowhere charges that the accused was present, either actually or constructively when the offense was committed. Per contra, it charges that what was charged against him was done 'before the commission of the crime aforesaid.' That it was the intention of the draftsman of the indictment to charge plaintiff in error as an accessory before and after the fact is also indicated by the title or heading of the indictment.
Central Holmes and plaintiff in error, Mose Penny, were tried together and the verdict of the jury, which was a single verdict, found them both guilty of murder in the second degree. Therefore plaintiff in error was convicted of an offense with which he was not charged in the indictment. This defect in the verdict was raised by a motion for a new trial and later the same point was raised by a motion in arrest of judgment, both of which motions were overruled.
In the case of Kauz v. State, 98 Fla. 687, 124 So. 177, 178, this Court, speaking through Mr. Justice Strum, said:
In that case the information as here, also, embraced the word 'aid' as well as the words 'counsel and procure,' but the court held that inasmuch as the information did not charge that the defendant was present, it was not sufficient to charge the defendant as a principal in the second degree, and that the words 'then and there' used in the information were mere words of reference, referring to the date and the county where the offense was alleged to have been committed and were not sufficient to charge that the defendant was present aiding and abetting at the locality in the county where the offense was committed. It was also stated in the opinion in that case, which was concurred in by all the members of the court, that the first clause in Section 7111, , C.G.L.,
It was also said in that case: Now in this case, Mose Penny and several other persons were present at the time Lenora Reed was shot and killed by Central Holmes, but none of them testified that Mose Penny in any way aided or abetted Central Holmes in the commission of the crime. Indeed, their testimony was to the contrary, including that of Central Holmes himself, who testified that Mose Penny had nothing whatever to do with it, either at the time, or before; nor did he take any part in the altercation leading up to the shooting. The only suspicious circumstance which the testimony showed was that Mose Penny did have a knife in his hand with the blade pointing upward towards his elbow his arm being down by his side, but there was no testimony that he made any effort to use the knife or any motion which indicated an intention to use it. So if he had been indicted as a principal in the second degree it is extremely doubtful that the evidence would have been sufficient to sustain his conviction on that charge. Probably it was the realization of this fact which caused the grand jury to indict him as an accessory before the fact, but the evidence...
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Torrence v. State
...346 So.2d 538 (Fla.1977); Perkins v. Mayo, 92 So.2d 641 (Fla.1957); LaRussa v. State, 142 Fla. 504, 196 So. 302 (1940); Penny v. State, 140 Fla. 155, 191 So. 190 (1939); State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980); Minor v. State, 329 So.2d 30 (Fla. 2d DCA 1976); Haley v. State, 315 ......
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Chambers v. State
... ... One must start this analysis with the premise that to charge an individual with one offense and convict him of another, even though the offenses are closely related, is error. See Penny v. State, 140 Fla. 155, 191 So. 190 (1939). Additionally, "a conviction on a charge not made by the indictment or information is a denial of due process of law." State v. Gray, 435 So.2d 816, 818 (Fla.1983) (citing Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) ). The ... ...
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Flarity v. State
... ... Sykes, 434 So.2d 325 (Fla.1983); Ray v. State, 403 So.2d 956 (Fla.1981); State v. Black, 385 So.2d 1372 (Fla.1980); State v. Dye, 346 So.2d 538 (Fla.1977); Perkins v. Mayo, 92 So.2d 641 (Fla.1957); LaRussa v. State, 142 Fla. 504, 196 So. 302 (1940); Penny v. State, 140 Fla. 155, 191 So. 190 (1939); Hamilton v. State, 129 Fla. 219, 176 So. 89, 112 A.L.R. 1013 (1937) (due process requires allegation of every material fact and essential element of offense be charged with precision and certainty); State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980); ... ...
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Ray v. State
...are closely related and of the same general nature or character and punishable by the same grade of punishment. Penny v. State, 140 Fla. 155, 162, 191 So. 190, 193 (1939). Accord, Perkins v. Mayo, 92 So.2d 641 (Fla.1957). This Court has indicated that for error to be so fundamental that it ......