Potter v. State
| Decision Date | 17 May 1926 |
| Parties | POTTER et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Calhoun County; Amos Lewis, Judge.
Henry Potter and Leola Potter were convicted of breaking and entering a dwelling house, with intent to commit grand larceny, and they bring error.
Reversed with directions.
Syllabus by the Court
Plea of 'autrefois acquit' consists of matters both of record and fact; former being first indictment and acquittal, latter being averments of identity of offense and of person. Plea of autrefois acquit consists of matters both of record and of fact; the former being the first indictment and acquittal the latter being the averments of identity of the offense and of the person.
Though first and second indictments for breaking and entering allege different times, time is sufficiently identified by averment in plea that offenses are one and same. Though the first indictment of breaking and entering alleges the offense to have been committed at one time, and the second indictment charges the offense to have been committed at a different time, the time of the commission of such offense is sufficiently identified by the general averment in the plea that the offense of which the defendants were indicted and acquitted in the first prosecution on the offense of which they now stand indicted are one and the same offense.
Though indictments for breaking and entering describe building in different ways, it is sufficiently identified in plea of former acquittal by general averment that building is one and same. Though in the first indictment for breaking and entering, a building be described in one way, and in a second indictment for a like offense the building be described in a different way, such building is sufficiently identified in a plea of former acquittal by the general averment that the building so differently described is one and the same.
A verdict of acquittal of a criminal offense, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense.
Ownership of building alleged to have been broken and entered is essential element of breaking and entering, and indictment containing no allegation of ownership is so defective that judgment thereon will be arrested. Ownership of the building alleged to have been broken and entered is an essential element of the offense of breaking and entering such building, and an indictment containing no allegation of ownership is so fatally defective that a judgment thereon will be arrested.
An indictment should allege every necessary element constituting the offense charged, and no such element should be left to inference.
Averment in indictment for breaking and entering that building was occupied by named person is not sufficient allegation of ownership. An averment in an indictment for breaking and entering that the building alleged was 'occupied' by a named person is not a sufficient allegation of ownership thereof as is required in such indictments.
Carter & Solomon, of Marianna, for plaintiffs in error.
J. B Johnson, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.
Plaintiffs in error, hereinafter referred to as defendants, were tried and convicted in the circuit court of Calhoun county upon an indictment charging them with breaking and entering a dwelling house, with intent to commit grand larceny, and from the judgment entered against them they have sued out a writ of error to this court.
The indictment upon which defendants were convicted on September 29, 1925, in substance charges that the defendants on the 3d day of September, 1924, in Calhoun county, 'did unlawfully, feloniously, break and enter a certain dwelling house, located about three miles south of Scott's Ferry, said dwelling house being then and there occupied by Tom Brown, with intent to commit a felony, to wit, grand larceny, by then and there stealing, taking, and carrying away the goods and chattels of the said Tom Brown of a greater value that $50.'
To this indictment the defendants entered a plea of autrefois acquit, in which they allege that they and each of them have heretofore been tried and acquitted of the identical offense charged in the said indictment because of the following facts, to wit: An indictment was returned in the circuit court for Calhoun county on April 28, 1925, at the regular spring term of said court, at which the judge of said court was present and presiding, charging that Henry Potter and Leola Potter, of the county of Calhoun and state of Florida, on the 15th day of November, 1924, in the said county of Calhoun, did "unlawfully, feloniously break and enter a certain dwelling house, located near Scott's Ferry, Calhoun county, Fla., to wit, a certain dwelling house occupied by Tom Brown, the property of the Marysville Naval Stores Company, a corporation, with intent then and there to commit a felony, to wit, grand larceny, by stealing, taking, and carrying away the goods and chattels of the said Tom Brown of a greater value than $50"; said indictment with all indorsements thereon being set out in said plea in haec verba. Further it is alleged in said plea that on the same day the defendants were duly arraigned in open court, and each pleaded not guilty to said indictment; that the said court had jurisdiction to try and determine the guilt or innocence of the defendants of the offense so charged; that at said term of said court, on May 1, 1925, the defendants were duly tried upon said indictment, and by the verdict of the trial jury found not guilty, which verdict was duly received and filed in said court on the same day; that these defendants are the identical persons named in both of said indictments; that the offense charged in both indictments is one and the same, although alleged in said indictments to have occurred on different days; that the breaking and entering alleged in both of said indictments is one and the same; that the building mentioned in both of said indictments is one and the same; and that the said defendants have been acquitted of the offense charged in the indictment returned in said court on April 28, 1925.
To this special plea in bar, the state demurred on three grounds, viz.:
This demurrer was sustained by the lower court, and thereupon, after pleading not guilty to said last indictment, the defendants were placed on trial, and by the verdict of the trial jury found to be guilty.
A motion in arrest of judgment was then made by defendants on the following grounds, viz.:
'(1) Because the indictment fails to charge the defendants or either of them with any offense or crime against the laws of the state of Florida.
'(2) Because the indictment fails to allege any ownership of the building into which the defendants are alleged to have broken and entered.
'(3) Because no ownership of the building mentioned in the indictment is alleged in the indictment.'
The lower court denied the motion, to which ruling the defendants duly excepted, and thereupon judgment was formally pronounced upon the defendants, from which they seek relief here by writ of error.
Two assignments of error are alleged, viz.:
(1) The court erred in sustaining the demurrer of the state of Florida to defendant's special plea in bar (plea of autrefois acquit).
(2) The court erred in overruling defendants' motion in arrest of judgment.
The Constitution of the state provides that----
'No person shall be subject to be twice put in jeopardy for the same offense.' Section 12, Declaration of Rights.
Supplementing this constitutional provision and giving to it practical effect is section 6059, R. G. Stats., which is as follows:
'Acquitted Person Not to be Tried Again For the Same Crime.--No person shall be held to answer on a second indictment, information or complaint, for a crime of which he has been acquitted, but such acquittal may be pleaded by him in bar of any subsequent prosecution for the same crime, notwithstanding any defect in the form or substance of the indictment, information or complaint.'
Thus under the Constitution and laws of this state, when a person has once been indicted for an offense, tried and acquitted, he cannot afterwards lawfully be indicted a second time for the same offense, and, if he be thus indicted a second time, he may plead autrefois acquit. Such a defense is a plea of discharge or release; that gives a reason why the defendant ought not to answer the indictment and ought not to be put on trial for the crime alleged. It is a plea of a mixed nature, and consists partly of matters of...
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