Smith v. State

• Decision Date: 20 January 1939
• Citation: 186 So. 203,135 Fla. 835
• Parties: SMITH v. STATE.
• Court: Florida Supreme Court

186 So. 203

135 Fla. 835

SMITH v. STATE.

Florida Supreme Court, Division B.

January 20, 1939

Rehearing Denied Feb. 10, 1939.

Error to Circuit Court, Clay County; DeWitt T. Gray, Judge.

Alonzo Smith, alias Lonnie Smith, was convicted of wilfully and maliciously setting fire to a certain building, and he brings error.

Affirmed.

COUNSEL

John L. Nixon, of Jacksonville, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for defendant in error.

OPINION

PER CURIAM.

On October 12, 1936, an information was filed in the Circuit Court for Clay County by the State's Attorney, charging in count 1 that Lonnie Smith on May 16, 1936, in Clay County Florida, did wilfully set fire to a certain building, to-wit a certain two story dwelling house known as 508 Palmetto Avenue in the Town of Green Cove Springs, the property of Stanford King, alias S. King, said building being then and there insured against loss or damage by fire by the American Insurance Company of Newark, New Jersey, a corporation, with intent then and there to injure said insurer.The second count is similar to the first except that the charge is that Lonnie Smith'did wilfully burn' the stated building.On October 12, 1936, Lonnie Smith was arraigned upon the information for wilfully setting fire to and burning the dwelling with intent to injure insurer, and pleaded not guilty.

On November 12, 1936, the same State's Attorney filed in the same court an information charging that Alonzo Smith, alias Lonnie Smith, on May 13, 1936, in the county and state aforesaid, did wilfully set fire to a certain building, to-wit, the dwelling house of Hattie Hazelton, then and there known as 508 Palmetto Avenue in the Town of Green Cove Springs, Florida.Defendant objected to the filing of this information on the ground that the defendant had been informed against for wilfully setting fire to a dwelling house with intent to defraud an insurer.The objection was overruled.

On November 12, 1936, Alonzo Smith, alias Lonnie Smith, was arraigned in open court on information for arson and pleaded not guilty to the last mentioned information.Upon a trial on such last information by a jury 'sworn according to law who after hearing the evidence, argument of counsel and charge of the court retired to their room in charge of their bailiff to consider of their verdict and afterwards returned into open court and announced that they could not agree on a verdict.Whereupon the court entered a mistrial and discharged the jury from further service in this cause'.

On November 12, 1936, the state's attorney entered a nolle prosequi of the information for wilfully setting fire to and burning the building referred to with intent to injure the insurer, as well as of the information charging arson.

On November 13, 1936, the same State's Attorney filed in the same court an information charging that Alonzo Smith, alias Lonnie Smith, on May 13, 1936, in the county and state aforesaid, did wilfully and maliciously set fire to a certain dwelling house, to-wit, the dwelling house of Hattie Hazelton, then and there situate and known as 508 Palmetto Avenue in the Town of Green Cove Springs, Florida.The second count charged that Alonzo Smith, alias Lonnie Smith, on May 13, 1936, did wilfully and maliciously burn the stated building and that Stanford King, alias S. King, did aid, counsel and procure him, the said Alonzo Smith, alias Lonnie Smith, in the burning of said dwelling house in the manner and form aforesaid then and there to do and commit.

The defendants Smith and King moved to quash the last stated information upon grounds going to the sufficiency of the information as a pleading and also on the following ground:

'(12) Said information is drawn against both defendants, although the record shows that such defendants have been heretofore separately informed against for this alleged offense.'

The motion to quash was denied; thereupon trial was had upon a plea of not guilty.A verdict of not guilty was returned as to Stanford King, alias S. King, upon instruction by the court.Whereupon the jury retired to their room in charge of their bailiff to consider their verdict as to the defendantAlonzo Smith, alias Lonnie Smith, and afterwards returned into open court and presented a verdict of guilty as charged in the first count of the information.A motion for new trial was denied and the defendant Smith was adjudged to be guilty and sentenced by judgment to five years' imprisonment in the State Penitentiary.

On writ of error it is contended that after the mistrial for failure of the jury to agree on a verdict on the first trial, the last information and the trial thereon put the defendant Smith twice in jeopardy for the same offense, contrary to Section 12, Declaration of Rights.

It is well settled in this state that a mistrial by reason of the inability of the jury to agree does not constitute former jeopardy.White v. State,63 Fla. 49, 59 So. 17;Johnson v. State,54 Fla. 45, 44 So. 765.Nor is the entry of a nolle prosequi a bar to another information for the same offense.Gibson v. State,26 Fla. 109, 7 So. 376.After the mistrial the case stood as if it had never been tried, and a nolle prosequi entered then had no different effect in favor of the defendant than if it had been entered prior to the trial.

The defendant contends that the corpus delicti was not sufficiently established before the introduction of an extrajudicial confession purported to have been made by him.An extrajudicial confession should not be admitted in evidence unless the corpus delicti is established by prima facie evidence independent of the extra-judicial confession.Holland v. State,39 Fla. 178, 22 So. 298;Gantling v. State,41 Fla. 587, 26 So. 737;Parrish v. State,90 Fla. 25, 105 So. 130;Deiterle v. State,101 Fla. 79, 134 So. 42.If the confession be admitted without such proof and additional evidence upon the subject is afterwards introduced independent of the confession which would have justified the admission of such confession, the error in prematurely admitting it will be cured.Smith v. State,93 Fla. 238, 112 So. 70;Anthony v. State,44 Fla. 1, 32 So. 818;Parrish v. State, supra.The corpus delicti may be proven as well by circumstances as by direct evidence, although the probative deficiencies which sometimes inhere in circumstantial evidence should be borne in mind.Lee v. State,96 Fla. 59, 117 So. 699;Nickels v. State,90 Fla. 659, 106 So. 479.

The corpus delicti of arson is the fact that a house was burned by the wilful act of some person criminally responsible for his acts.2 Am. & Eng.Enc.Law 938;Underhill's Criminal Evidence(4th Ed.) Sec. 616, pp 1193, 1194;...