Roe v. State
| Decision Date | 05 December 1928 |
| Parties | ROE et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Hillsborough County; W. Raleigh Petteway, Judge.
George P. Roe and another were convicted of burning a building with intent to injure an insurance company, and they bring error.
Reversed.
Syllabus by the Court
Description in information under law penalizing burning of building with intent to injure insurer held insufficient to properly identify building (Rev. Gen. St. 1920, § 5111). A description of the building burned, as contained in an information drawn under section 5111, Rev. Gen. Stats., which penalizes the burning of an insured building with intent to injure the insurer, which merely describes the building as a one-story frame building situate on a certain street in a named place in a certain county, without more, and without alleging the ownership of the building, is not a sufficient description to properly identify such building.
Charge of being accessory before the fact to offense of burning insured building held defective for failure to allege intent (Rev. Gen. St. 1920, § 5111). Under section 5111, Rev. Gen Stats., the gist of the offense is the burning of a building insured against loss by fire, with a specific intent, to wit the intent to injure the insurance company; and a count in an information which attempts to charge one with being accessory before the fact to the crime defined by the statute is defective if it fails to expressly allege that the acts alleged to have been done by the alleged accessory were done with such specified intent.
Whether our statute, providing, in mitigation of the too broad rule of the common law, that no person shall be disqualified to testify as a witness by reason of conviction of any crime except perjury, with the proviso, however, that evidence of such conviction may be given to affect the credibility of such witness, intended by such proviso to embrace, as being admissible as affecting credibility, only the same class of crimes conviction for which at common law constituted ground for the disqualification of a witness, considered but not decided.
Questioning defendant, charged with burning insured building, relative to whether he would admit burning house, held erroneous. On the trial of a defendant charged with burning a building with intent to injure an insurance company, such defendant, while testifying as a witness in his own behalf, was on cross-examination by the state asked the following question: 'If you had burned this house, would you admit it?' Held that such question was improper and beyond the limits of legitimate cross-examination.
Cross-examination should be limited to interrogation as to questions of fact; witness cannot be cross-examined relative to opinion as to questions of moral obligation; argumentative or speculative questions should not be included in cross-examination. Cross-examination should be limited to interrogation as to questions of fact, and should exclude questions which call for expression of the witness' opinion as to questions of moral obligation or the like, or questions which are argumentative and speculative.
Office copy of part of insurance policy held admissible in prosecution for burning insured building with intent to injure insurer (Rev. Gen. St. 1920, § 5111). In a criminal prosecution by the state against a person accused of burning a building with intent to injure an insurance company, the trial court was free from error in admitting in evidence an office copy, made in due course of business, of part of an insurance policy, which the testimony of the insurance agent and his secretary tended to show was duly issued by the company named in the information, covering the building which was burned and insuring the same against loss or damage by fire.
Instruction confusing presumption of innocence, abiding in favor of defendant, with reasonable doubt, held erroneous. It is the presumption of innocence, and not a reasonable doubt, which abides in favor of the defendant until the state has overcome such presumption by proving his guilt beyond a reasonable doubt, and an instruction given by the court confusing the two subjects is erroneous.
Macfarlane, Pettingill, Macfarlane & Fowler, of Tampa, for plaintiffs in error.
Fred H. Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.
Plaintiffs in error were convicted in the criminal court of record of Hillsborough county of burning a building with the intent to injure a certain named insurance company, and the judgment of conviction is brought up for review on writ of error.
The information was filed under section 5111 of Rev. Gen. Stats., which was repealed by chapter 11812 of the Laws of 1927, now appearing as sections 7208-7212, Comp. Gen. L. 1927. However, the crime, if any, was committed, the prosecution begun, and the trial had before the statute was repealed, though judgment and sentence were not entered and imposed until subsequent to such repeal. But under section 32 of article 3 of the Constitution, the repeal of this section of the Revised General Statutes was without effect upon the prosecution and progress of this case. It might be observed in this connection that the repealing statute contained among its positive provisions a section which the Legislature no doubt intended to cover cases of this sort. But neither the meaning nor the validity of such repealing act are pertinent to the case now before us.
Section 5111, Rev. Gen. Stats., under which this prosecution was brought, reads as follows:
'Whoever burns a building or any goods, wares, merchandise or other chattels which are at the time insured against loss or damage by fire, with intent to injure the insurer, whether such person is the owner of the property burned or not, shall be punished by imprisonment in the state prison not exceeding twenty years.'
The information against plaintiffs in error was in three counts, the first count charging them jointly with burning a one-story frame building situate on Butler avenue, in Belmont Heights, Hillsborough county, Fla., which was insured by the Importers' & Exporters' Insurance Company, a corporation, with intent to injure the insurance company. In the second count, George P. Roe was charged as principal and Jerome J. Roe as accessory before the fact, and in the third count Jerome J. Roe was charged as principal and George P. Roe as accessory before the fact.
A motion to quash the information was filed, which questioned the sufficiency of the information in respect to the description or identification of the building alleged to have been burned. The motion to quash also made the point that the failure to allege the ownership of the building burned was fatal to the sufficiency of the information. At common law, such allegation in an indictment for arson was undoubtedly essential, so as to show that the building was the property of another, and many modern cases add the further reason that the allegation of ownership is appropriate and necessary to the proper identification of the offense; and such is the general practice even where ownership in another is not expressly made an ingredient of the statutory crime. 5 C.J. 563, and cases cited. And this court has often held that in prosecutions under our burglary statutes, it is essential to the indictment that ownership of the building entered be alleged. Addison v. State (Fla.) 116 So. 629. But it would appear that where the burning of a building, with a specific intent, and regardless of whether it was owned by the offender or not, is made the gist of a statutory offense, an allegation of ownership might not be absolutely essential to the sufficiency of an indictment or information, except as such description might prove to be needful to the proper identification of the building burned, so as to defeat any second prosecution for the same offense. U.S. v. McBride, 18 D. C. (7 Mackey) 371, 386. It is not necessary here to determine whether this allegation was essential under said section 5111, but, without it, the description of the building burned, as contained in the information, is hardly sufficient to properly identify it. The description as contained in the information, 'A one-story frame building situate on Butler Avenue, in Belmont Heights, Hillsborough County, Florida,' is very vague. There may have been a number of one-story buildings situate on the street named, for aught that appears in the information. If it were in fact the only building of that character on that street in Belmont Heights, and this fact had been alleged in the information, the identification might have been sufficient to avoid the danger of a second prosecution for the same offense, but as it stands and not being aided by an allegation of ownership, the building burned is not identified with that certainty and definiteness which an indictment or information for such a grave criminal offense should contain. It does not appear that this court has ever passed upon this identical question, but in each of the following cases, which have been considered by this court, the defendant was charged with burning property with the intent to defraud an insurance company, and in each instance the information alleged the ownership of the property. Bryant v. State, 89 Fla. 26, 103 So. 170; Latham v. State, 88 Fla. 310, 102 So. 551; Hall v. State, 90 Fla. 719, 107 So. 246; Walker v. State, 82 Fla. 465, 90 So. 376. See, also, Goff v. State, 60 Fla. 13, 53 So. 327. On account of the indefiniteness of allegation in the respect above pointed out the motion to quash the information should have been sustained.
The motion to quash also attacked the...
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