J. K. STOKES, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a conviction for altering animal marks and brands, finding the indictment fatally defective for confusing two distinct offenses.
The court held that the indictment was not defective for failing to describe the marks and brands. However, it was fatally defective because it confused the distinct offenses of altering marks and altering brands in a single count.
“The indictment confuses the two crimes in one count, the general verdict therefore affords no sufficient predicate for a sentence, and the judgment should have been arrested.”
This quote explains the fatal defect in the indictment.
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Join FLexlaw to unlock all legal intelligenceJ. K. Stokes was indicted for altering the marks and brands of a hog. The indictment was alleged to be defective for failing to describe the marks and…
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Cockrell,
The indictment charging J. K. Stokes with altering the existing marks and brands of a hog, the property of W. W. Sanders, is alleged to be defective in failing to describe the marks and brands so altered.
In Mizell v. State, 38 Ela. 20, 20 South. Rep. 769, we held it unnecessary in an indictment for the larceny of a cow, to describe the marks and brands, and we see no reason for a more specific description in this class of cases. We decided in Shiver v. State, 41 Fla. 630. 27 South. Rep. 36, that the indictment need not allege the owner of the mark alleged to have altered, and in the opinion, the case of State v. O’Neal, 7 Iredell (N. C.) 251, is cited approvingly. In the O’Neal case, that court decided it is not necessary to set forth the original mark nor in what manner the alteration was made. The case of State v. S'telly, 48 La. Ann. 1478, 21 South. Rep. 89, is also exactly in point.
There is, however, a fatal defect in the indictment. Since the decision in the Shiver case, there has been a separation of the crime of altering the marks or brands of an animal; the two being now distinct though kindred offenses, with different penalties. See Daughtry v. State, this day decided. The indictment confuses the two crimes in one count, the general verdict therefore affords no sufficient predicate for a sentence, and the judgment should have been arrested.
Judgment reverséd.
Shackleford, C. J., and Taxlor, Hocker and Whitfield, J. J., concur.
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Citator
Cited By
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Russo v. State, 142 Fla. 596 (Fla. 1940)…he rule stated in Stedman v. State, 80 Fla. 547, 86 Sou. 428, would be applicable. But this information charges two separate, distinct and inconsistent offenses and is, therefore, ruled by Griswold v. State, 77 Fla. 505, 82 Sou. 44; Stokes v. State, 65 Fla. 416, 62 Sou. 345. For the reasons stated, the judgment should be reversed.…
Authorities Cited
- Wilburn Shiver v. State, 41 Fla. 630 (Fla. 1899)