Tufts v. State

• Decision Date: 10 November 1899
• Citation: 41 Fla. 663,27 So. 218
• Parties: TUFTS v. STATE.
• Court: Florida Supreme Court

27 So. 218

41 Fla. 663

TUFTS v. STATE.

Florida Supreme Court

November 10, 1899

Error to criminal court of record, Orange county; Oecil G. Butt Judge.

C. E Tufts was convicted of criminal trespass, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. It is not necessary, in an indictment under section 2516, Rev St., for willfully injuring, destroying, or carrying away timber or wood from the land of another, to allege an entry upon such land by the trespasser, or that such entry was unlawful or felonious. The signification of the word 'willful,' as used in this section of the statute, is that the acts prohibited must be done with an evil intent and without justifiable excuse. This section of the statute so fully defines the crime thereby prohibited, that an indictment following its language, without enlargement, is sufficient.

2. A demurrer to a replication to a plea in bar reaches the plea, if defective.

3. Under the provisions of section 2888, Rev. St., an acquittal by a jury upon a regular and orderly trial may be effectually pleaded in bar of another information or indictment for the same offense, notwithstanding any defect in the form or substance of the indictment upon which such acquittal was had.

4. When a plea of autrefois acquit, in the approved form, alleging all the essentials to such a defense, is interposed, a replication contesting its truth can only deny the existence of the record pleaded, or the identity of the person or offenses therein alleged. The record of such former acquittal cannot be averred against or avoided by matters dehors such record.

COUNSEL

Thomas E. Wilson and Sparkman & Carter, for plaintiff in error.

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

OPINION

TAYLOR C.J.

The plaintiff in error on the 28th day of March, 1899, in the criminal court of record for Orange county, was charged with criminal trespass upon land, by information as follows:

'The State of Florida. In the name and by the authority of the state of Florida: In the criminal court of record of Orange county, Florida, for Orange county, at the March term thereof, in the year of our Lord 1899, Orange county, to wit: Be it remembered that R. G. Robinson, county solicitor for the county of Orange, prosecuting for the state of Florida in the said county in said court, under oath, on the 28th day of March, A. D. 1899, information makes that C. E. Tufts, late of the county of Orange aforesaid, in the county and state aforesaid, laborer, on the 2d day of June in the year of our Lord 1898, with force and arms, at and in the county of Orange, state of Florida, aforesaid, in and upon the lands of the Eppinger & Russell Company, a corporation under the laws of the state of New York, and Jacob D. Nordlinger, to wit, the south half of section twenty-one, and the southwest quarter of section twenty-two, and the west half of section twenty-seven, and section twenty-eight, and the northwest quarter of the northwest quarter of section thirty-three, all in township twenty south, range twenty-nine east, county and state aforesaid, then and there the joint property of the said Eppinger & Russell Company and of the said Jacob D. Nordlinger, did willfully commit a trespass, by cutting and carrying away therefrom cypress timber, then and there standing and growing, of the value of five thousand dollars, of the property of the said Eppinger & Russell Company and of the said Jacob D. Nordlinger, against the form of the statute in such case made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the state of Florida. Wherefore the said R. G. Robinson, county solicitor as aforesaid, prosecuting for said state as aforesaid, prays the advice of the said court in the premises, and that the said C. E. Tufts may be arrested and held for trial under the foregoing information, and that a capias may issue forth-with for his arrest.' Upon this information the defendant was tried and convicted, and took writ of error.

The defendant moved in arrest of judgment upon the grounds, among others, that the information was bad for uncertainty, and because it did not charge a crime under the laws of the state of Florida. This motion was denied, and such ruling is assigned as error. It is contended here in support of this assignment that the information is bad because of its failure to allege an entry upon the land by the defendant, and that such entry was unlawful and felonious. This contention is untenable. Section 2516, Rev. St., upon which this information is predicated, is as follows: 'Whoever wilfully commits a trespass by cutting, scraping, injuring or destroying timber or wood standing or growing on the land of another, or by carrying away any kind of timber or wood, cut down or lying on such land, or by digging or carrying away any stone, ore, gravel, clay, sand, turf, or mould from such land, or by carrying away anything which is parcel of the realty, shall be punished as if he had stolen personal property of the same value.' It will be observed that the act herein prohibited is not an entry upon land, but the injuring, destroying, or carrying away of timber or wood therefrom. And, again, the section, by its own express language, fully defines the term 'trespass' that it employs: 'Whoever wilfully commits a trespass.' How or in what manner? 'By scraping, injuring or destroying timber or wood standing or growing on the land of another, or by carrying away any kind of timber or wood, cut down or lying on such land,' etc. The signification of the word 'willful,' as used in this statute, is that the acts prohibited must be done with an evil intent and without justifiable excuse; and it is unnecessary, in an indictment charging the offense, to do more than to allege, in the language of the statute, that the acts complained of were willfully done. Section 2894, Rev. St., provides that it shall be unnecessary to allege in an indictment that the offense therein charged was a felony, or feloniously done. We are of the opinion that this section of the statute so fully defines the crime thereby prohibited that an indictment or information following its language, without enlargement, is sufficient, and that the court below committed no error in the denial of the motion in arrest of judgment on the ground of any of the supposed defects in the information.

The defendant pleaded autrefois acquit, as follows: 'And the said C. E. Tufts, in his own proper person, comes into court here, and, having heard the information read, says that the said state of Florida ought not further to prosecute the same against him, because he says that heretofore, at this adjourned January term of the court, on the 6th day of March A. D. 1899, it was by the oath of R. G. Robinson, county solicitor for the county of Orange, state of Florida, prosecuting for said state, presented that the said C. E. Tufts, late of the county of Orange aforesaid, in the county...