Shiver v. State

• Decision Date: 18 October 1899
• Citation: 27 So. 36,41 Fla. 630
• Parties: SHIVER v. STATE.
• Court: Florida Supreme Court

27 So. 36

41 Fla. 630

SHIVER v. STATE.

Florida Supreme Court

October 18, 1899

Error to circuit court, Osceola county; Minor S. Jones, Judge.

Wilburn Shiver was convicted for fraudulently altering brands of an animal, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. An indictment under section 2474, Rev. St., for fraudulently altering and changing the marks and brands of an animal, to wit, a steer, belonging to another, with intent to claim the same, need not allege the name of the owner of the mark and brand as altered; and an allegation therein that the fraudulent alteration was effected by defendant 'with intent to claim said steer,' is sufficiently definite to apprise him of the specific intent charged, and to enable him to prepare his defense to that branch of the charge against him.

2. The formal conclusion of indictments whereby it is alleged that the acts charged are 'contrary to the form of the statute,' or 'against the peace and dignity,' of the state, is not a matter of substance, but formal merely and under section 2893, Rev. St., it is no longer material that the indictment omits such conclusion.

3. A plea in abatement, to the effect that a member of the grand jury that found an indictment was not a qualified juror at the time his name was selected and placed in the jury box by the county commissioners, but with no allegation that the juror was disqualified at the time he was impaneled or performed service as such, is bad.

4. An application for a continuance upon the ground of the absence of a witness must show that the applicant has exercised due diligence to procure the attendance of such witness, or to procure his deposition if the law provides for taking such deposition.

5. Motions for change of venue in criminal cases are addressed to the sound judicial discretion of the presiding judge, and where a motion of this character, based upon the ground that public sentiment is such that a fair and impartial trial cannot be had in the county, is supported only by a defendant's affidavit, an appellate court will not reverse a ruling denying such motion, in the absence of some showing that the defendant was prevented from securing corroborative evidence by hostile public sentiment.

6. An appellate court will not reverse the ruling of the trial court overruling a challenge for cause to a proposed juror unless the grounds of challenge are sustained by proof offered in support thereof, or are otherwise shown to be true by the record.

7. An instruction to the effect that the testimony of an accomplice is competent evidence; the credibility of such accomplice is for the jury to pass upon as they do upon any other witness while the testimony of an accomplice will sustain a verdict when uncorroborated, yet such testimony must be received with great caution; but, if such testimony carries conviction, and the jury are convinced of its truth, they should give to it the same effect as would be allowed to a witness who is in no way implicated in the offense,--is not erroneous.

8. A general assignment of error alleging error in the refusal to give a number of instructions asserting separate and distinct propositions of law will be overruled if any one of such instructions be found to have been properly refused.

9. If in any case, a judgment can be reversed for failure of the trial judge to define the term 'reasonable doubt' when he has instructed the jury that they must be satisfied of defendant's guilt beyond a reasonable doubt, and give him the benefit of every such doubt, it can only be had in cases where the party complaining of such omission presents to the trial judge an instruction containing a correct definition of the term, and excepts to the court's refusal to give it.

COUNSEL

E. K. Foster, N. P. Bryan, and Clark & Gibbons, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

CARTER J.

At the fall term, 1897, of the circuit court for Osceola county, plaintiff in error was indicted for fraudulently altering and changing the marks and brands of animals with intent to claim the same. The indictment contained five counts: The first charging that he, in said county, on July 15, 1897, 'did fraudulently alter and change the marks and brands of a certain animal, to wit, one brindled steer, of the property of Samuel Summerlin, the mark having been changed from swallow-fork and underbit in one ear and underbit in the other, to crop in one ear and sharp in the other, and the brand having been altered from 'Heart H (symbol)' to 'Triangle H (symbol),' with intent to claim said steer.' Then followed four other counts, each beginning, 'And the jurors aforesaid, on their oaths,' etc., the last one ending with the formal conclusion beginning, 'contrary to the form of the statute,' etc. The defendant moved to quash the indictment, which motion was sustained as to the fifth count, but denied as to the others. Upon the trial, defendant was found guilty as charged in the first count, and from the sentence imposed sued out this writ of error.

The defendant moved in arrest of judgment upon the ground, among others, that the first four counts of the indictment failed to charge that the offense was committed '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 motion was denied.

The indictment was based upon section 2474, Rev. St., which reads: 'If any person shall fraudulently alter or change the mark or brand of any animal or shall fraudulently mark or brand any unmarked animal, with intent to claim the same, or to prevent identification by the true owner or owners thereof, the person or persons so offending shall be punished.' etc.

1. In passing upon the motion to quash, we shall consider the sufficiency of the indictment only as respects the specific objections pointed out, which are two, viz. the failure to allege the name of the owner of the mark and brand as altered, and the failure to allege whether defendant intended to claim the property as his own or that of another. As to the first objection, there is nothing in the statute which requires such allegation. It is the fraudulent altering or changing of the mark or brand upon an animal of another, with intent to claim the same, that is denounced by the statute; and it is not a necessary ingredient of the offense that the altered mark or brand should be claimed by the defendant or any other person. The ownership of the altered mark or brand might constitute a circumstance proper to be considered in determining the question of defendant's intent in effecting the alteration, but the statute does not make it an essential ingredient of the offense, so as to require it to be noticed in framing the indictment. In State v. O'Neal, 29 N.C. 251 (text, 254), speaking of an indictment under a statute somewhat similar to the one under consideration, the court say: 'It is made criminal by the statute knowingly to alter it with intent to defraud, and it is a matter of no importance into whose mark it is altered. It is the willful alteration that constitutes the offense.'

The indictment was good, also, as against the second objection. The allegation 'with intent to claim said steer' follows substantially the language of that part of the statute which defines the intent made an ingredient of the offense, and is sufficiently definite to apprise the defendant of the specific intent charged against him, and to enable him to prepare his deferse thereto.

2. The formal conclusion of indictments whereby it is alleged that the acts charged are 'contrary to the form of the statute,' or 'against the peace and dignity of the state,' is not a matter of substance, but formal merely. Com. v. Freelove, 150 Mass. 66, 22 N.E. 435; Brown v. State, 13 Ark. 96; Castro v. Reg., 6 App. Cas. 229. At common law its omission was a formal but nevertheless fatal, defect, and in some of the states there are constitutional or statutory provisions requiring its insertion in all indictments. We have no such provisions in this state, and with us the common-law rule prevails, unless it has been changed by statute. Section 2893, Rev. St., reads: 'No indictment shall be quashed, or judgment be arrested, or new trial be granted, on account of any defect in the form of the indictment or of misjoinder of offenses, or for any cause whatsoever, unless the court shall be of the opinion that the indictment is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.' Under the broad language of this statute this rule of the common law is abolished, and it is now no longer material that the indictment omits the formal conclusion. Michael v. State, 40 Fla. 265, 23 So. 944; Frisbie v. U. S., 157 U.S. 160, 15 S.Ct. 586, 39 L.Ed. 657; State v. Kirkman, 104 N.C. 911, 10 S.E. 312; Rice v. State, 3 Heisk. 215; Bolln v. State, 51 Neb. 581, 71 N.W. 444. It is true that the original act from which the quoted section was compiled (section 1, c. 1107, Act Feb. 2, 1861) contained after the word 'offenses' the additional words, 'or of failure to conclude in proper form against the statute or statutes,' and that these words were dropped by the revisers in bringing the act forward in the revision; but we do not think that the omission of this tautologous expression requires us to place a construction upon the section different from that stated above, because the language retained is clear and explicit that defects in the form of the indictment shall not invalidate it, and the omitted words added nothing to the true meaning of ...