Preston v. State

• Decision Date: 13 December 1934
• Citation: 117 Fla. 618,158 So. 135
• Parties: PRESTON v. STATE.
• Court: Florida Supreme Court

158 So. 135

117 Fla. 618

PRESTON v. STATE.

Florida Supreme Court, Division B.

December 13, 1934

Error to Circuit Court, Bay County; Ira A. Hutchison, Judge.

John Preston was convicted of robbery with a deadly weapon, and he brings error.

Affirmed.

See also, 156 So. 285.

COUNSEL R. B. Moseley, of Jacksonville, for plaintiff in error.

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

OPINION

BUFORD Justice.

Plaintiff in error was convicted in the circuit court of Bay county Fla., and sentenced to serve twenty-five years in state prison, judgment being entered on October 11, 1932.

On the 22d day of November, 1933, plaintiff in error filed a motion in the court below to vacate and set aside the judgment on several grounds. The motion was denied. Then writ of error was sued out to challenge the judgment theretofore entered.

There was no bill of exceptions presented at the term of the court at which the judgment was entered, nor within any time allowed by the court thereafter. The only exception reserved and presented here is to the order denying the motion to vacate the judgment.

The motion to vacate the judgment is presented in nine grounds as follows:

'1st. That count one of the indictment in said cause wholly fails to charge this defendant with any crime under the laws of the State of Florida in that it wholly fails to charge that John I. Gibson committed the act of robbery, he then and there being armed with a dangerous weapon with the intent if resisted to then and there kill or maim the person robbed, and therefore cannot constitute a basis for a conviction of and judgment and sentence of this defendant as an accessory to the crime of robbery.

'2nd. That count two of the indictment in said cause wholly fails to charge this defendant with any crime under the laws of the State of Florida in that it wholly fails to charge that John I. Gibson, although being armed with a dangerous weapon, to-wit: a pistol, that he was so armed with an intent to kill or maim the said Lee Leggon, if resisted by him the said Lee Leggon, and therefore said count of said indictment cannot constitute a basis for a conviction of and judgment and sentence of this defendant as an accessory to the crime of robbery.

'3rd. Said indictment and each count thereof wholly fails to allege or show that the money alleged to have been taken by John I. Gibson was not his property.

'4th. Said indictment wholly fails to set forth a proper charge of robbery either at Common Law or under the Statutes of Florida.

'5th. The judgment and sentence is not based upon any valid verdict of a jury in said cause.

'6th. The judgment of the court is wholly insufficient because it does not state of what the Court adjudges the defendant, John Preston, to be guilty of.

'7th. The attempted judgment of the Court attempts to adjudge the defendant, John Preston, as being guilty of robbery with a deadly weapon, whereas the defendant, John Preston, was only charged as an accessory to the act of robbery, and therefore said judgment is void.

'8th. The sentence of the Court is wholly insufficient because same is not in conformity with section 8417, Compiled General Laws of Florida, A. D. 1927, in that said sentence wholly fails to state that this defendant shall be imprisoned.

'9th. The sentence of the Court is wholly void because it is not based upon a judgment of conviction of an accessory to the crime of robbery as charged in the indictment.'

The indictment was in two counts. Each count thereof sufficiently charged the plaintiff in error, John Preston, with the crime of robbery as principal in the second degree under section 5055, R. G. S., section 7157, C. G. L., as amended by section 1, c. 13792, Acts 1929. By reference to that section it will be observed that it denounces robbery by...