JULIUS VICENTE AND VICTOR DEAN, PLAINTIFFS IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a conviction for entering a building with intent to commit a misdemeanor, holding that the information was fatally defective for failing to allege the ownership of the building.
Yes, an information charging the offense of feloniously and burglariously breaking and entering a building, which contains no allegation as to the ownership of the building, is fatally defective.
“An information charging the offense of feloniously and burglariously breaking and entering a building which contains no allegation as to the ownership of the building is fatally defective.”
Establishes the legal principle regarding the necessity of alleging ownership in burglary-related charges.
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Join FLexlaw to unlock all legal intelligenceJulius Vicente and Victor Dean were charged with feloniously entering the Jefferson Hotel with intent to commit a misdemeanor. The information did not…
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Hocker, J.
The information herein charges that the defendants “feloniously did enter without breaking a certain building there situate, to-wit, the Jefferson Hotel, with intent to commit a misdemeanor, to-wit, petit larceny.” There is no allegation as to the ownership of the building alleged to have been feloniously entered. After conviction the defendants moved in arrest of judgment on the ground that as no ownership of the building is alleged the information is fatally defective. This motion was overruled and the defendants took writ of error. Defects that do not render an indictment or information fatally defective should be pointed out in a motion to quash so that any adjudged defect may be duly remedied, rather than in a motion in arrest of judgment after conviction. But where an indictment or information is fatally defective in alleging a criminal offense, a motion in arrest of judgment is available, even though no motion to quash was made.
An information charging the offense of feloniously and burglariously breaking and entering a building which contains no allegation as to the ownership of the building is fatally defective. Davis v. State, 51 Fla. 37, 40 South. Rep. 179.
The information being fatally defective in not alleging the ownership-of the building, the judgment of conviction thereon should have been arrested. Judgment reversed.
Shackleford, C. J., and Taylor, Cockrell and Whitfield, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Roy Smith alias Tom Green v. State, 96 Fla. 30 (Fla. 1928)…allegation of ownership of the building alleged to have been entered is material and must be proved as laid. See Pells v. State, 20 Fla. 774; Burns v. State, 89 Fla. 494, 104 So. R. 783; Smith v. State, 80 Fla. 315, 85 So. R. 911; Vincent v. State, 66 Fla. 197, 63 So. R. 423; Davis v. State, 51 Fla. 37, 40 So. R. 179, Potter v. State, 91 Fla. 938, 109 So. R. 91. Reversed. Whitfield, Terrell, Strum and Buford, J. J., concur. Brown, J., absent on account of illness.…
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Smith v. State, 72 Fla. 449 (Fla. 1916)…he like effect is Adams v. State, Fla. , 72 South. Rep. 473. We would also refer to Mills v. State, 58 Fla. 74, 51 South. Rep. 278; Edwards v. State, 62 Fla. 40, 56 South. Rep. 401; Sumpter v. State, 62 Fla. 98, 57 South. Rep. 202; Vicente v. State, 66 Fla. 197, 63 South. Rep. 423; Pennel v. State, 66 Fla. 203, 63 South. [*456] Rep. 422; Dykes v. State, 68 Fla. 110, 66 South. Rep. 565; Robinson v. State, 69 Fla. 521, 68 South. Rep. 649, L. R. A. 1915 E 1215. The case of Cooper v. State, 47 Fla. 21, 36 Sout…1 / 2
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Burnes v. State, 89 Fla. 494 (Fla. 1925)…roken and entered is a material ingredient of the offense of breaking and entering, and an indictment which contains no allegation of ownership of the building is fatally defective and judgment thereon will upon motion be arrested. Vicente v. State, 66 Fla. 197, 63 South. Rep. 423; Davis v. State, 51 Fla. 37, 40 South. Rep. 179; Pells v. State, 20 Fla. 774. And an allegation that a building broken and entered is the property of the estate of a person deceased is insufficient. It amounts to an omission to a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 51 Fla. 37 (Fla. 1906)