H. O. MOBLEY, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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H. O. Mobley was convicted of larceny of a cow in Hillsborough County, but the evidence at trial showed he stole a steer instead. The Florida Supreme Court reversed his conviction, holding that a variance between the charged animal (cow) and the proven animal (steer) was fatal to the prosecution's case because the statute distinguishes between these different bovine animals.
The variance between the allegation and the proof was fatal to the State's case. A conviction for larceny of a cow cannot be sustained by proof of the larceny of a steer, as the statute recognizes a meaningful distinction between these animals—a cow being a full-grown female and a steer being a castrated male of the bovine genus.
“The statute under which the information was laid, recognizes a difference and a distinction between a cow and a steer, as there is in fact, the one being a full grown female of the bovine genus, the other being a castrated male of the same genus.”
Establishes the legal and factual distinction between the charged animal and the proven animal that made the variance fatal.
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Join FLexlaw to unlock all legal intelligenceMobley was informed against, tried, and convicted in the Criminal Court of Record of Hillsborough County for larceny of one cow under Section 3299 of …
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Taylor, J.
The plaintiff in error was informed against, tried, convicted and sentenced in the Criminal Court of Record of Hillsborough County for the larceny of one cow, and brings the case here for review by writ of error. The information is predicated upon Section 3299 of the General Statutes of 1906, that provides as follows: "Whoever commits larceny by stealing any horse, mule, mare, filly, colt, cow, bull, ox, steer, heifer or calf, the property of another, shall be punished by imprisonment in the State prison not less than two years nor more than five years.” It charged the defendant with the larceny of “one cow, a further description whereof is to the solicitor unknown.” The proofs adduced at the trial, without any conflict, showed that the animal stolen was a three or four years old steer. The defendant requested the court to instruct the jury as follows: “It is incumbent upon the State of Florida to prove every material allegation in the information in this case upon which the defendant is being tried and if the jury believe from the evidence in this case that the said animal alleged to have been stolen was a steer and not a cow, the jury must acquit the defendant.” But the court refused to so instruct the jury, and this refusal is assigned as error. This ruling was error. The statute under which the information was laid, recognizes a difference and a distinction between a cow and a steer, as there is in fact, the one being a full grown female of the bovine genus, the other being a castrated male of the same genus. And where, as in this case, the information charges the larceny of a cow the crime cannot be made out by proof of the larceny of a steer. The King v. Cook, 1 Leach C. L. 105, S. C. 2, East P. C. 616; State v. Lange, 22 Tex. 591; State v. M’Lain, 2 Brevard (S. C.) 443; State v. McMinn, 34 Ark. 160; Territory v. Marinez,—Arizona—44 Pac. Rep. 1089; State v. Royster, 65 N. C. 539; Cameron v. State, 9 Tex. App. 332; Courtney v. State, 3 Tex. App. 257.
The variance between the allegation and the proof was fatal to the State’s case, and the requested charge should have been given. The judgment of the court below in said cause is hereby reversed at the cost of Hills-borough County.
All concur except Park hill, J., who took no part because of illness.
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Grissom v. State, 405 So. 2d 291 (Fla. 1st DCA 1981)…nsel repeatedly referred to the male calf as a “cow.” We therefore conclude that in this case the variance was immaterial and does not preclude conviction. Appellant cites Higginbotham v. State, 78 Fla. 114, 82 So. 601 (1919), and Mobley v. State, 57 Fla. 22, 49 So. 941 (1909), but these authorities are unavailing in the present case. Neither Higginbotham nor Mobley involved circumstances similar to this case, and the decision in Mobley is expressly predicated upon a larceny statute which distinguishes…
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Mathis v. State, 70 Fla. 194 (Fla. 1915)…stealing any horse, mule, mare, filly, colt, cow, bull, ox, steer, heifer, or calf, the property of another, shall be punihsed by imprisonment in the State prison not less than two years nor more than five years.” It is true that in Mobley v. State, 57 Fla. 22, 49 South. Rep. 941, 17 Ann. Cas. 735, which is cited to us by the pliantiffs in error, we held as follows: Where the statute makes it a felony to1 commit larceny of “any * * * cow, bull, ox, steer, heifer or calf,” an information charging the larce…
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Jones v. State, 64 Fla. 92 (Fla. 1912)…re insisted that the indictment should have been quashed because no value of the animal is given, if the indictment proceeds under the general statute against larceny and if under General Statutes, section 3299, set out at length in Mobley v. State, 57 Fla. 22, 49 South. Rep. 941, directed against horse and cattle stealing, it fails to allege that the animal stolen was a “cow, heifer, calf, steer or what.” The indictment sets out the sex and age of the animal, so that it could only be a cow or heifer, bot…
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