State v. Cootner

• Decision Date: 14 October 1952
• Citation: 60 So.2d 734
• Parties: STATE v. COOTNER.
• Court: Florida Supreme Court

Page 734

60 So.2d 734

STATE v. COOTNER.

Supreme Court of Florida, en Banc.

Oct. 14, 1952.

Richard W. Ervin, Atty. Gen., Leonard Pepper, Asst. Atty. Gen., Glenn C. Mincer, State's Atty., Robert R. Taylor, County Solicitor, Miami, Vivion B. Rutherford, Asst. County Solicitor, Miami Beach, and John H. Connelly, Asst. County Solicitor, Miami, for appellant.

Louis M. Jepeway and John G. Dauber, Miami, for appellee.

PER CURIAM.

The appellee was tried upon the charge that he burned, or caused to be burned, certain personal property located in a described building in Miami, Dade County, Florida. The information, among other things, contained the following:

'* * * said personal property being then and there the property of the said William Cootner.' (Emphasis supplied.)

At the trial the testimony showed that the property was owned by Carter Clothing Company, Inc., a Florida corporation. At the conclusion of the State's testimony, the Court granted a motion for directed verdict on the ground that there was a fatal variance between the charge and the proof. The jury returned a verdict of not guilty as directed by the Court.

A new information was then filed identical with the first information except it alleged:

'* * * said personal property being then and there the property of Carter Clothing Company, Inc., a Florida Corporation.' (Emphasis supplied.)

The Court directed a verdict of not guilty in the first case because it was of the opinion that the allegation of ownership was a material allegation.

A motion was filed to quash the second information on the ground of double jeopardy. The Court granted this motion and the State has appealed.

The Court granted the motion to quash on the theory that the ownership of the property was not material and that the same evidence except as to ownership would be applicable to the second case.

The appellee has assumed two inconsistent positions. As to the trial on the first information he urged that the allegation of ownership was so vital and material that a variance between the name of the owner alleged and the name of the owner proved was a fatal variance. As to the second information he urges that the question of ownership was not material and that the same evidence as to the burning offered in the first trial would be offered in the second trial and, therefore, to place him on trial a second time would be double jeopardy.

The two informations charged separate and distinct offenses. The first was the burning of personal property 'being then and there the property of the said William Cootner.' The second information charged a different offense of burning the property 'being then and there the property of the Carter Clothing Company, Inc., a Florida Corporation.'

In the case of Hicks v. State, 43 Fla. 171, 29 So. 631, this Court announced a very strict rule with reference to arson. The lower Court charged the jury to the effect that if they believed that the defendant wilfully and maliciously set fire to and burned a structure which was a dwelling house and that said dwelling house was the property of the person alleged in the information, they should find the defendant guilty. This Court in reversing the case held that the charge was error because it was not sufficient to prove that the party alleged in the indictment owned the building and that the building was the dwelling house of some other person, but it must also be shown that the building is the dwelling house or residence of the party alleged in the indictment.

In the case of Cox v. State, 87 Fla. 79, 99 So. 126, the plaintiffs in error were tried and convicted upon a charge of the wilful and malicious burning of the dwelling house of another. There was evidence to the effect that at the time of the burning, the building was not the dwelling house of the owner for the reason that he and his family had previously vacated it with no intention to return. In further corroboration of this testimony, there was offered testimony that the owner was negotiating with another to sell the property and a verbal agreement of sale had been made. The Court sustained objections to this testimony. This Court reversed the case and said:

'The excluded evidence being material, and the rulings excluding it being error, and this being a vital point in the case, it cannot be said that the erroneous rulings were not harmful.'

In the case of Sawyer v. State, 100 Fla. 1603, 132 So. 188, 192, this Court held that an indictment or information for the burning of a dwelling house 'should allege that the dwelling house burned was the dwelling house of a certain person or persons, naming him or them, and that the evidence to sustain such charge should show that the dwelling house burned was the habitation of such person or persons so designated in the indictment or information'. (Emphasis supplied.)

In 22 C.J.S., Criminal Law, § 298, page 454, under the Title Arson the following appears:

'Under the rule that the offense must be the same in both prosecutions in order to support a defense of former acquittal, it is held that such identity of charges does not appear if the ownership or possession of the property is laid in different persons. Thus, an acquittal of burning a dwelling house and barn belonging to one person is no bar to an indictment for the same offense which alleges that the property belonged to another person.'

The test above quoted is sustained by the cases of State v. Schwartz, 5 W. W. Harr. 415, 35 Del. 415, 166 A. 665, and Commonwealth V. Wade, 17 Pick. 395, 34 Mass. 395.

In the case of...