BEN P. JONES, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Ben P. Jones was convicted of stealing cattle from R. Wardlow. The Florida Supreme Court affirmed the conviction but reversed on the narrow ground that the trial court imposed a sentence below the statutory minimum, requiring remand for proper sentencing.
The indictment was adequate because the description of the animal's sex and age necessarily identified it as either a cow or heifer, both covered by the cattle theft statute with identical penalties regardless of value. Venue was proven by the defendant's own admission. However, the sentence was improper because it fell below the statutory minimum, requiring reversal and remand for resentencing.
“The indictment sets out the sex and age of the animal, so that it could only be a cow or heifer, both of which are named in the statute, the theft of either being identically the same crime with the same penalty and irrespective of value.”
Establishes that the indictment's description was sufficient to identify the animal within the statutory definition without stating value.
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Join FLexlaw to unlock all legal intelligenceJones was convicted of stealing a female bovine animal, nearly two years old, with a white body and red head, without horns, marked with a swallow for…
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Cockrell, J.
Jones was convicted of stealing “On female animal of the Bovine species, nearly two years of age, with a white body and red head, and without horns, marked swallow fork in one ear and underbit in the other ear, a more particular description of same being to the Grand Jurors unknown, the property of one R. Wardlow.”
It is here 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, both of which are named in the statute, the theft of either being identically the same crime with the same penalty and irrespective of value. The word “bovine” comes from the Latin word “bos,” meaning ox or cow, and in common parlance applies only to those well known domestic animals, which have so long supplied the people of this country with both meat and drink. The accused could not possibly have been misled or endangered by the description of the animal and in fact was not, as it is clearly shown the sole question was whether he had bought the particular cow or heifer from Wardlow.
We fail to see how it can be seriously contended that there is a total failure to prove the venue, when the accused in open court admitted that he took this identical animal in Jackson county and then and there sold her. Needless to say no authority is cited to the proposition that an open admission of such fact dispenses with the necessity for other evidence.
Two other assignments upon the evidence are also without merit. A question addressed to the alleged owner of the animal as to where and under whose control the animal was raised, calls for a relevant fact within his knowledge, not for an opinion. Nor does harmful error appear from a refusal to strike evidence admitted apparently without objection which is objectionable only in that it was largely negative and irrelevant.
It was peculiarly within the province of the jury to decide whether Wardlow or Jones told the truth, and we are not disposed to interfere.
Our attention is directed both by the plaintiff in error and the State to the fact that the sentence imposed by the Court upon the verdict was below the minimum fixed by the statute; we are, therefore, constrained to reverse the cause in order only that a proper sentence be imposed. Webster v. State, 47 Fla. 108-117, and cases cited.
Whitfield, C. J., and Taylor, Shackleford and Hocker, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Park Tucker and Tolbert Tucker v. State, 100 Fla. 1440 (Fla. 1930)…al had been had and verdict rendered. The allegation is that one of the animals stolen was a red yearling arid the proofs sustained that allegation. An animal may be described clearly without using the exact words of the statute. See Jones v. State, 64 Fla. 92, 59 So. R. 892; L. R. A. 1915B, 71. In the case of Mizell v. State, 38 Fla. 20, 20 So. R. 769, It was held that it is not necessary to describe the animal stolen by its color or flesh marks, and in the case of Mathis v. State, 70 Fla. 194, 69 So. R…
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Holloman v. State, 140 Fla. 59 (Fla. 1939)…ed for the pronouncement of proper judgment and sentence. See Keech v. State, 15 Fla. 591; Roberts v. State, 30 Fla. 82, 11 Sou. Rep. 536; Wallace v. State, 41 Fla. 547, 26 Sou. Rep. 713; Irvin v. State, 52 Fla. 51, 41 Sou. Rep. 785; Jones v. State, 64 Fla. 92, 59 Sou. Rep. 892, L. R. A. 1915B 71; Hunter v. State, 64 Fla. 315, 60 Sou. Rep. 786; Taylor v. State, 67 Fla. 127, 64 Sou. Rep. 454; Smith v. State, 71 Fla. 639, 71 Sou. Rep. 915; Payner v. State, 81 Fla. 726, 88 Sou. Rep. 762; Cooper v. State, 83…
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Mathis v. State, 70 Fla. 194 (Fla. 1915)…ncede that the authorities are not in entire harmony upon the point now under consideration, but we believe that the conclusion which we have reached and announced is supported by the better reasoned cases. See also our discussion in Jones v. State, 64 Fla. 92, 59 South. Rep. 892, L. R. A. 1915 B 71, where a valuable note will be found appended, collecting many authorities. In the instant case, as in the cited case, “the accused could not possibly have been misled or endangered by the description of the a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Webster v. State, 47 Fla. 108 (Fla. 1904)
- Mobley v. State, 57 Fla. 22 (Fla. 1909)