Enson v. State

Parkhill, J. The plaintiff in error was convicted of the crime of grand larceny and brings the judgment here by writ of error for review. Omitting the caption, the information is as follows: “In the name and by the authority of the State of Florida: James T. Sanders, county solicitor for the county of Dade, prosecuting for the State of Florida, in the said county, under oath, information makes that Charlie En-son, laborer, late of the county of Dade and State of Florida, on the 19th day of April in the year of our Lord one thousand nine hundred and nine, in the county and State aforesaid, then and there, certain bank bills and notes commonly known and denominated as lawful currency of the United States, of divers denominations, the number and denomination of which are to the prosecutor unknown, and certain silver specie, a more particular description of which is to the prosecutor unknown, amounting in the aggregate to the sum of $100.00 lawful currency of the United States and of the value of $100.00 which said currency and specie was then and there the property of one W. J. Cole, the said Charlie Enson then and there having found did steal, take and carry away, contrary to the statute,” &c. At the close of the evidence the defendant requested the judge to give the following instruction to the jury: — 40 — “The defendant in this case is charged with stealing certain bank bills and notes known as lawful currency of the United States of divers denominations, the number and denomination of which are alleged to be unknown to the county solicitor, and also certain silver specie, a more particular description, it is alleged, is unknown to the county solicitor, said property being alleged to be of the aggregate value of $100.00. It appears from the evidence that the county solicitor knew or could easily have know a better description at the time of the filing of the information than the description set forth in the said information, there is, therefore, a fatal variance and you will accordingly find a verdict of not guilty.” This instruction was properly refused for the reason that there was no evidence that the county solicitor knew the number and denomination of the bank bills or a more particular description of the silver specie alleged to have been stolen, and the instruction erroneously predicated defendant’s right to an acquittal on the fact that the county solicitor could easily have known a better description of the property than that given in the information. It asked too much. The question here is whether the allegation that a more particular description of the bank notes and specie was unknown to the county solicitor is sustained by the proof, not whether the county solicitor could easily have known a better description. In some jurisdictions the rule is stated to be that a variance results where it becomes apparent from the evidence that the matter alleged as unknown might have been discovered by the exercise of ordinary diligence, but these cases would seem to be properly placed upon lack of diligence or carelessness in making the accusation and not upon variance between the allegation and proof. The better rule would seem to be that to create a variance the fact of knowledge, not ability to acquire knowledge, must affirm — 41 — atively appear from the evidence. The information alleges that a more particular description of the property is unknown to the solicitor. It becomes a question, then, upon all the evidence, of accord or variance between this allegation and the proof, not of diligence or carelessness in making the accusation. It is doubtless true that, under the plea of not guilty, the allegation of want of knowledge of a better description of the property on the part of the county solicitor is traversable and the subject of inquiry, and that an information false in this respect would not support a conviction. But the defendant desires to go beyond the allegation of the information and raise the outside issue that the solicitor could easily have known a better description of the property. The fact that the county solicitor could easily have ascertained a better description of the property may be evidence that he knew the same, but it is not conclusive, and cannot be made an absolute test of the sufficiency of the allegation that he did not know. 22 Cyc. 465; Commonwealth v. Sherman, 13 Allen (Mass.) 248; Commonwealth v. Hill, 11 Cush. (Mass.) 137, text 141; Commonwealth v. Hendrie, 2 Gray (Mass.) 503; Commonwealth v. Thornton, 14 Gray (Mass.) 41; Commonwealth v. Stoddard, 9 Allen (Mass.) 280, text 282, 283; Commonwealth v. Noble, 165 Mass. 13, 42 N. E. Rep. 328; Wells v. State, 88 Ala. 239, 7 South. Rep. 272; Duvall v. State, 63 Ala. 12; Terry v. State, 118 Ala. 79, 23 South. Rep. 776; Winter v. State, 90 Ala. 637, 8 South. Rep. 556; White v. People, 32 N. Y. 465; Noakes v. People, 25 N. Y. 380; People v. Noakes, 5 Parker’s Cr. Rep. (N. Y.) 292; People v. Fleming, 14 N. Y. Supp. 200; State v. Carey, 15 Wash. 549, 46 Pac. Rep. 1050; Rex v. Walker, 3 Camp. 264. See also Guthrie v. State, 16 Neb. 667, 21 N. W. Rep. 455, S. C. Am. Cr. Rep. 78; Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. Rep. 394; Rex v. — 42 — Bush, Russ & R. C. C. 372; Lang v. State, 42 Fla. 595, 28 South. Rep. 856; Com. v. Gallagher, 126 Mass., 54. In discussing this question, the Supreme Court of Massachusetts, in Commonwealth v. Sherman, supra, said: “The origin of the statement in some hooks that, if a name alleged to be unknown might with reasonable diligence have been ascertained by the prosecutor, the defendant is entitled to an acquittal, is probably to be found in some imperfect reports of English nisi prius cases. 2 East P. C. c. 16, Par. 89. The King v. Keakin, 2 Leach (4th ed.) Rex v. Walker, 3 Camp. 264; Rex v. Robinson, Holt N. P. C. 595. Upon such a case being cited Mr. Justice Littledale, an eminent common-law lawyer, said, ‘The question is whether the person is known to the grand jury. It will be difficult to prove that he was so known, and unless he was known to the grand jury, I should doubt about that case.’ Rex v. Cordy, 2 Russell on Crimes (3rd ed.) 98, note by Greaves. The earliest case which we have seen in which a traverse jury were required to find that the grand jury could not by reasonable diligence have ascertained the name was one tried at nisi prius before Mr. Justice Thomas Erskine. Regina v. Campbell, 1 Car. & Kirw. 82. “By the much higher authority of the twelve judges of England, this matter has been put upon the right footing. In one case they held that an indictment against an accessory of a principal therein alleged to be unknown was good, although the same grand jury had returned another indictment against the principal by name. Rex v. Bush, Russ. & Ry. 372. And in another case, according to the fullest report, they stated the rule to be that ‘in order to sustain a count for the murder of a child whose name is to the jurors unknown, there must be evidence showing that the name could not reasonably have been supposed to be known to the grand jury.’ Regina v. Stroud, 1 Car. & — 43 — Kirw. 187. Another report of this case in 2 Mood. C. C. 270, by abridging this statement to 'the want of description is only excused when the name cannot be known, wholly changes its meaning; for what the grand jury may reasonably be supposed to have known is only what it may be rightly inferred they did know, which is a quite distinct thing from that which they could know, or, in other words, reasonably might, but did not, ascertain. The judgments of this court support the position which we now affirm. Commonwealth v. Hill, 11 Cush. 141. Commonwealth v. Hendrie, 2 Gray, 504. Commonwealth v. Thornton, 14 Gray, 41. Commonwealth v. Stoddard, 9 Allen, 282, 283. “It is always open to the defendant to move the judge before whom the trial is had to order the prosecuting attorney to give a more particular description, in the nature of a specification or bill of particulars, of the acts on which he intends to rely, and to suspend the trial until this can be done; and such an order will be made whenever it appears to be necessary to enable the defendant to meet the charge against him, or to avoid danger of injustice. Commonwealth v. Giles, 1 Gray, 469. The King v. Curwood, 3 Ad. & El. 815. Rosc. Crim. Ev. (6th ed.) 178, 179, 420.” As sustaining the right of the defendant to a bill of particulars upon a proper showing in this State, see Mathis v. State, 45 Fla. 46, 34 South. Rep. 287; Thalheim v. State, 38 Fla. 169, 20 South. Rep. 938; Eatman v. State, 48 Fla. 21, 37 South. Rep. 576; Brass v. State, 45 Fla. 1, 34 South. Rep. 307. Our statute makes bank notes and money the subject of larceny and where the required degree of certainty cannot be used in specifying the pieces or denominations of coins stolen or the number and denomination of bank bills, it will be enough to state that a better description than that — 44 — given is unknown to the county solicitor or to the grand jury as the case may be. 12 Ency. Pl. & Pr. 990. The information is sufficient in its allegations of the time and place of the larceny alleged. Baldwin v. State, 46 Fla. 115, 35 South. Rep. 220. The evidence is sufficient to support the verdict. The motion for new trial on the ground of newly discovered evidence was properly overruled because the defendant failed to show that the evidence offered was discovered since the trial, and that he could not have discovered it before the trial by the exercise of due diligence. A new trial will not be granted on a mere showing that new evidence has been discovered, but the defendant is required to rebut the presumptions that the verdict is correct and that he exercised due diligence in preparing for the trial. See Mitchell v. State, 43 Fla. 584, 31 South. Rep. 242; Howard v. State, 36 Fla. 21, 17 South. Rep. 84; Williams v. State, 53 Fla. 89, 43 South. Rep. 428. What we have said disposes of all the points presented and argued. The errors assigned are all overruled, but the judgment must be reversed for a proper sentence. The alternative sentence is erroneous in providing that the defendant be imprisoned in the State penitentiary upon default in the payment of the fine and costs. Where the primary sentence imposed is a fine and costs of prosecution only, the court should fix a period of imprisonment in the county jail, instead of in the State penitentiary, for the non-payment of such fine and costs. Section 4011 Gen. Stats. of 1906. Thompson v. State, 52 Fla. 113, 41 South. Rep. 899. The judgment of the court below is reversed and remanded for proper sentence, at the cost of the county of Dade. — 45 — Whitfield, C. J., and Shackleford and Cockrell, JJ., concur. Hocker, J., absent, concurred in the opinion as prepared.