Tuberson v. State

• Decision Date: 21 July 1890
• Citation: 26 Fla. 472,7 So. 858
• Court: Florida Supreme Court
• Parties: TUBERSON v. STATE.

7 So. 858

26 Fla. 472

TUBERSON v. STATE.

Florida Supreme Court

July 21, 1890

Error to criminal court of record, Duval county; LOTON M. JONES Judge.

Syllabus by the Court

SYLLABUS

1. The defendant pleaded autrefois acquit, which was demurred to ore tenus, and the demurrer sustained. Held, that there was no error in sustaining the demurrer, as it was not made to appear that the offense for which the defendant had been tried and acquitted was one and the same offense as that for which he was convicted.

2. The testimony of an accomplice uncorroborated is sufficient to convict upon.

3. When a jury after thorough deliberation upon any case shall return into court without having agreed upon a verdict, the court may explain to them again the law applicable to the case, and may send them out again for further deliberation; but, if they shall return the second time without having agreed on a verdict, they should not be sent out again without their consent unless they shall ask from the court some further explanation of the law, but the mere entry upon the motion docket that the court sent the jury out the third time without their consent is no evidence of the fact that the jury were so sent out.

4. When the information sets out the offense with sufficient certainty to notify the defendant fully of the nature of the same, the information will not be quashed as being vague and uncertain, nor will the affidavit to the information be held insufficient when it complies with the oath prescribed by the statute.

COUNSEL

Pone & Michelson, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

MITCHELL J.

The plaintiff in error was tried for gambling in the county criminal court of record of Duval county, on the 2d day of July, 1889, and was convicted and sentenced to the penitentiary for three months; and the case comes before this court upon writ of error to said court from the order of the court, overruling motion for new trial and arrest of judgment.

The errors assigned are--First, the court erred in sustaining demurrer ore tenus to defendant's plea of autrefois acquit.

This plea, in substance, is that the defendant, at the same term of the court at which he was tried and convicted upon a charge of gambling, was also tried and acquitted upon a charge of keeping a gambling house, and the contention is that the gambling by the defendant and keeping a gambling house were one and the same offense. This position is not tenable. The two offenses, keeping a gambling house and gambling, are distinct offenses. A man guilty of keeping a gambling house may not be guilty of gambling, and a man may be guilty of gambling at any place without having any connection with a gambling house; and, in the case at bar, it may be that the defendant never kept a gambling house, and yet was guilty of gambling. The evidence in the case is excluded from our consideration by the defendant's failure to incorporate it in a bill of exceptions, and, in the absence of the evidence, the presumption is that the evidence sustains the finding of the jury, for, if the verdict was not supported by the evidence, there would probably by a bill of exceptions before this court to show that fact. We find nothing in the record to sustain the contention that the offense for which the defendant was tried and acquitted and the offense for which he was convicted were one and the same transaction, and for this reason can see no error in the court below sustaining the demurrer to the defendant's said plea.

The second error assigned is: The court erred in refusing to give the fourth charge as requested by defendant. This was the charge refused:

'The testimony of an accomplice uncorroborated is not sufficient to convict.' There was no error in refusing this charge. Bacon v. State, 22 Fla. 51. But even if the uncorroborated evidence of an accomplice were not sufficient to convict upon, there is absolutely nothing in the record which shows that any accomplice testified in the case.

Third assignment: The court erred in refusing to discharge the defendant as prayed on account of sending out the jury three times without their consent, when no further explanation of...