Studstill v. State

• Decision Date: 19 May 1922
• Citation: 83 Fla. 623,92 So. 151
• Parties: STUDSTILL et al. v. STATE.
• Court: Florida Supreme Court

92 So. 151

83 Fla. 623

STUDSTILL et al. v. STATE.

Florida Supreme Court

May 19, 1922

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

Donovan Studstill and John Lee Studstill were convicted of willfully and maliciously cutting a fence inclosing land not belonging to such defendants, and they bring error.

Affirmed.

Syllabus by the Court

SYLLABUS

Motion to strike evidence a part of which was admissible held properly overruled.A motion to strike evidence is properly overruled when it includes legal and relevant testimony.

Motion to strike testimony must limit testimony sought to be stricken to inadmissible testimony.A motion to strike testimony must not be too broad.Where part of the testimony so sought to be stricken is clearly proper, the motion may for that reason be denied.

Motion in arrest of judgment reaches only such errors as appear upon record; when indictment or information is sufficient on motion in arrest of judgment.A motion in arrest of judgment reaches only such errors as appear upon the record and when addressed to the indictment or information is effective only when they wholly fail to charge any offense or their allegations are so vague and uncertain as to embarrass the defendant in the preparation of his defense or expose him after acquittal or conviction to substantial danger of another prosecution for the same offense.

Judgment of conviction on conflicting evidence not reversed where evidence is legally sufficient to support verdict.A judgment of conviction will not be reversed by an appellate court although there may be conflicts in the evidence, where there is evidence in the record legally sufficient to support the verdict, and nothing to indicate that the jury were influenced by considerations outside the evidence.

Indictment charging malicious cutting of fence held sufficient.In prosecution for willfully and maliciously cutting a fence inclosing land not belonging to the defendants under Rev Gen. St. 1920, § 5264, indictment charging the offense substantially in the language of the statute held sufficient.

In prosecution for malicious cutting of fence, quitclaim deed held admissible to prove land inclosed did not belong to defendants.In prosecution for the willful and malicious cutting of a fence inclosing land not belonging to the defendants, a quitclaim deed was admissible to prove the allegation of the indictment that the land did not belong to the defendants.

COUNSEL

E. Dixie Beggs, of Madison, for plaintiffs in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

WEST J.

Plaintiffs in error, Donovan Studstill and John Lee Studstill, with Roy Futch, were charged in an indictment returned by a grand jury of Madison county with the crime of willfully and maliciously cutting a fence belonging to or inclosing land not their own, as denounced by section 5264, Revised General Statutes of Florida.Upon a trial verdict was returned finding plaintiffs in error guilty as charged and the other defendant not guilty.To the judgment imposing sentence, writ of error was taken from this court.

The indictment, omitting formal parts, is as follows:

'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, Donovan Studstill, and John Lee Studstill, late of said county, on the 19th day of January, A.D. 1921, in the county and state aforesaid, did willfully and maliciously injure and cut a fence belonging to land not their own or either of them.And that Roy Futch, late of said county of Madison, on the day and year aforesaid, in the county aforesaid, feloniously was present aiding, abetting and assisting the said Donovan Studstill and John Lee Studstill the felony aforesaid to do and commit, against the peace of the state of Florida, and contrary to the statute in such cases made and provided.'

The first two assignments of error question rulings of the trial court refusing, upon motion, to strike the testimony of two witnesses in behalf of the state.Each of these witnesses had testified to practically the same thing, the substance of which was that they saw the two defendants who were convicted cutting the fence with which they were charged with having cut.

The contention seems to be that the statute defines two distinct crimes, one the cutting of 'any fence,' the other the cutting of 'any part thereof'; that the indictment charges the cutting of 'a fence,' but the proof shows the cutting of only 'a part of a fence,' wherefore it is said there is a variance between the allegation and the proof.The evidence which defendants sought to have stricken was to the effect that the defendants cut the fence, which was of wire, with pliers in a number of places, making distinct openings for passing through.

There was no error in these rulings.Even if it should be conceded that the construction contended for is proper, the motion should have been overruled.In each instance, after the direct examination of the witness was completed, motion was made to strike the whole of the testimony given.Most, if not all, of such testimony was pertinent and material.It at least tended to prove the charge contained in the indictment, and should not, therefore, have been stricken.Presley v. State,61 Fla. 46, 54 So. 367;Sims v. State,59 Fla. 38, 52 So. 198;Putnal v. State,56 Fla. 86, 47 So. 864;Thompson v. State,52 Fla. 113, 41 So. 899;Freeman v. State,50 Fla. 38, 39 So. 785.

By motion in arrest of judgment the sufficiency of the indictment is challenged.The ruling denying this motion is assigned as error, and upon this assignment the contention is made that the indictment charges no offense against the laws of this state.It may be admitted that the indictment is somewhat inartifically drawn, but it charges the offense alleged substantially in the language of the statute prohibiting it and prescribing the punishment.It is not so vague and indefinite as to mislead the...