Straughter v. State

• Citation: 92 So. 569,83 Fla. 683
• Parties: STRAUGHTER v. STATE.
• Decision Date: 31 May 1922
• Court: United States State Supreme Court of Florida

92 So. 569

83 Fla. 683

STRAUGHTER v. STATE.

Florida Supreme Court

May 31, 1922

Error to Circuit Court, Madison County; M. F. Horne, Judge.

Willie Straughter was convicted of murder in the first degree, and he brings error.

Reversed.

West and Whitfield, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Indictment required to allege definite date upon which alleged crime was committed at common law. At common law it is necessary that an indictment allege a definite date upon which the alleged crime was committed.

Indictment must state fefinite date on which alleged crime was committed. There is no statute in this state expressly changing the rule at common law, requiring an indictment to state a definite date upon which the alleged crime was committed.

Commission of crime on date other that alleged may be proved. Except in those cases where the allegation and proof of the precise time are material, a different date from that alleged in an indictment before the return of the indictment and within the statute of limitations may be proved at the trial as the date upon which the alleged crime was committed.

Indictment charging offense to have been committed upon impossible date is defective. An indictment, charging an offense to have been committed upon an impossible date, is defective.

Indictment charging commission of murder on 31st day of September, held defective on motion in arrest. There is no such date in the calendar as September 31, and an indictment charging an offense to have been committed on such date is defective, and a motion in arrest of judgment upon a conviction on such indictment seasonably made should be granted.

COUNSEL E. Dixie Beggs, of Madison, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for the State.

OPINION

WEST J.

The charge in this case is murder in the first degree. The verdict found the defendant guilty with recommendation to mercy. The court adjudged him to be guilty, and sentenced him to imprisonment in the state prison for life. The indictment which was returned by a grand jury on October 11, 1916, is as follows:

'In the Circuit Court of the Third Judicial Circuit of Florida in and for Madison County.

'In the name and by the authority of the state of Florida:

'The grand jurors of the state of Florida, duly chosen, impaneled, and sworn diligently to inquire and true presentment make in and for the body of the county of Madison, upon their oath present that Willie Straughter, late of said county, on the 31st day of September, A. D. 1916, in the county and state aforesaid, with force and arms, and with a deadly weapon, to wit, a pistol loaded and charged with gunpowder and leaden balls, and which he, the said Willie Straughter, then and there had and held in his hands in and upon one James Stephens, unlawfully of and from a premeditated design to effect the death of the said James Stephens, did make an assault; and the said Willie Straughter did then and there unlawfully of and from a premeditated design to effect the death of the said James Stephens shoot off and discharge the leaden balls aforesaid at, toward, against, upon, and into the said James Stephens, and with said leaden balls aforesaid, so shot off and discharged as aforesaid, the said Willie Straughter did strike, penetrate, and wound the said James Stephens, thereby inflicting in and upon the body of the said James Stephens, unlawfully of and from a premeditated design to effect the death of the said James Stephens, two mortal wounds of and from which said mortal wounds the said James Stephens did languish, and, languishing, did afterwards, to wit, on the 2d day of October, A. D. 1916, in the county and state aforesaid, die contrary to the laws of the state of Florida.

Stafford Caldwell,

'State Attorney Third Judicial Circuit of Florida.'

By a motion in arrest of judgment and a motion for new trial, both of which were overruled and the ruling in each case made the basis of an assignment of error, two questions are presented, namely: (1) The sufficiency of the indictment; and (2) the sufficiency of the proof to sustain the verdict.

The indictment charges the offense to have been committed on the 31st day of September, A. D. 1916. The contention is made that, the month of September having only 30 days, 'the 31st day of September' is an impossible date, or amounts to a failure to allege any particular date upon which the crime was committed, rendering the indictment fatally defective.

At common law it is necessary that an indictment state definitely the date upon which an alleged crime was committed. This is the rule generally except where it has been modified by statute. Joyce on Indictments, § 309; 1 Bishop's New Crim. Proc. § 387. It obtains in this state. Morgan, alias Porter, v. State, 51 Fla. 76, 40 So 828, 7 Ann. Cas. 773; Dickson v. State, 20 Fla. 800; Morgan v. State, 13 Fla. 671. It is equally well established that except in those cases where the allegation of the precise time is material a different date from that alleged in the indictment before the date of the return of the indictment and within the statute of limitations may be proved at the trial as the date upon which the crime was committed. Whatley v. State, 46 Fla. 145, 35 So. 80; Chandler v. State, 25 Fla. 728, 6 So. 768. In Morgan, alias Porter, v. State, supra, Mr. Justice Parkhill, speaking for the court, said that if it appears illogical to hold that the precise date must be alleged, and that the offense may be proved to have been committed on any day prior to the return of the indictment and within the period of the statute of...