Taylor v. State

• Decision Date: 27 June 1939
• Citation: 190 So. 262,138 Fla. 762
• Parties: TAYLOR v. STATE.
• Court: Florida Supreme Court

190 So. 262

138 Fla. 762

TAYLOR v. STATE.

Florida Supreme Court, Division A.

June 27, 1939

Error to Criminal Court, Dade County; Ben C. Willard, Judge.

Aldine Taylor was convicted of breaking and entering a building with intent to commit grand larceny, and Aldine Taylor brings error.

Judgment affirmed.

COUNSEL George S. Okell, of Miami, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J Ellis, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

Writ of error brings for review judgment of conviction of the offense of breaking and entering a building with intent to commit a felony, to-wit grand-larceny.

Plaintiff in error presents four questions for our consideration as follows:

'Did the lower court err in holding that the plea of autrefois acquit was bad in law and fact on an oral demurrer interposed by the County Solicitor to said plea?'

II. 'Did the lower court err in permitting the County Solicitor to interrogate the defendant on cross-examination about statements allegedly made by the defendant before certain police officers at the time of his arrest when said statements had not been brought out by the defendant on direct examination or referred to or brought out in any way by the State in its direct case, even though the lower Court restricted said testimony to be used solely for the purpose of impeachment over the timely interposition of objection by defense counsel?'

III. 'Did the lower court err in permitting the witness Charles Price to testify to statements made to police officers in his presence by the defendant at the time of the arrest of defendant as a rebuttal witness when the State had failed in its direct case to offer any statement of such a character, and when a contradiction of said statements had been brought out by the State from defendant on the State's cross-examination of defendant, over the timely objection by defense counsel, and elicited by the State solely so as to lay grounds for the State to impeach the defendant by the witness, Charles Price?'

IV. 'Was the evidence as to identification and as to ownership of the property sufficient to warrant a conviction of the charge on which the defendant was convicted?'

The count of the information on which defendant was convicted is:

'In the Name and by Authority of the State of Florida:

'Robt. R. Taylor, County Solicitor, for the County of Dade prosecuting for the State of Florida, in the said county, under oath, information makes that Aldine Taylor and Ernest Nelson of the County of Dade and State of Florida, on the 24th day of January in the year of our Lord, one thousand nine hundred and thirty-eight, in the County and State aforesaid, did unlawfully and feloniously break and enter the store building located at 279 East Flagler Street, City of Miami, Dade County, Florida, property of one Turf Exchange Bar, Inc., a Florida Corporation, with intent to commit a felony therein, to-wit: grand larceny, with intent to take, steal and carry away money, goods and chattels of the value of more than Fifty ($50.00) Dollars, contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Florida.'

The other counts of the information were eliminated by order of the Court.

The plea in abatement interposed is:

'The defendant Aldine Taylor pleas autrefois acquit.

'2. The defendant Aldine Taylor shows that heretofore on to-wit: February 24, A. D. 1938, in case #5712 in the above styled court, an information was filed against the said Aldine Taylor, charging the said Aldine Taylor with armed robbery, a copy of said information being hereto attached and made a part hereof as though fully set forth herein; that on or about April 21, A. D. 1938, said cause came on for trial before the Honorable Ben C. Willard, in the Criminal Court of Record in and for Dade County, Florida and that after the calling and selection of a jury and the submission of testimony by the State and upon the State resting its case, a motion for a directed verdict in favor of the defendant was made by the defendant Aldine Taylor and was granted by the Court, and a verdict of not guilty was duly rendered by the jury and presented to the Clerk and recorded in the minutes of this Court, and the defendant was ordered discharged.

'That since the above trial, a new information, #5954 has been filed by the State of Florida and that said information covers one and the same crime and transaction for which the defendant Aldine Taylor was found not guilty as aforesaid.

'3. The defendant, Aldine Taylor, avers that each and every count of the information is embraced by and covered by the former prosecution in case #5712, which was tried in the above styled Court, which resulted in a verdict of not guilty acquitting the defendant...