Smith v. State
| Decision Date | 24 April 1900 |
| Citation | 42 Fla. 236,27 So. 868 |
| Parties | SMITH v. STATE. |
| Court | Florida Supreme Court |
Error to circuit court, Leon county; John W. Malone, Judge.
Peter Smith was convicted of murder, and brings error. Reversed.
Syllabus by the Court
1. A second indictment may be presented and filed while a former one against the same party for the same offense is still pending.
2. An indictment for murder must allege the place where the mortal stroke was given, and the evidence must support such allegation, even though the indictment alleges, and the proof shows, that the deceased died of the mortal would in the county where the indictment was found.
3. Testimony to the effect that a mortal blow was inflicted very near to 'Clarrissa's house,' and that this house was near Alice Jones' house. and not very far from the home of the deceased, is not sufficient to prove the allegation that the blow was inflicted in Leon county, Fla.
COUNSEL E. M. Hopkins and William C. Hodges, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
On December 4, 1899, during a term of the circuit court of Leon county, an indictment charging plaintiff in error with murder in the first degree was presented by the grand jury. On December 8th, another indictment for the same offense was presented, and subsequently, on the same day, a nolle prosequi was entered as to the former one. Plaintiff in error was arraigned and tried on the second indictment, found guilty of murder in the first degree, and from the death sentence, passed December 9th, sued out this writ of error. The indictment alleges that the mortal stroke was given in Leon county, and that deceased died in that county. By the assignment of errors it is claimed, among other things, that the court erred in overruling the motion for a new trial, and in permitting the second indictment to be filed before the first had been disposed of.
The court did not err in permitting a second indictment to be presented and filed, while a former one for the same offense was still pending. Eldridge v. State, 27 Fla. 162, 9 So. 448; State v. Curtis, 29 Kan. 384; Bailey v State, 11 Tex.App. 140. But the court did err in refusing the motion for a new trial, because the state failed to prove that the mortal wound was inflicted in Leon county as alleged in the indictment. While it is unnecessary to allege the place of the death of the party slain, under...
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