ARNOLD FESSER
v.
STATE
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Arnold Fesser was convicted on four counts—two counts of assault with intent to rob and two counts of aggravated assault—based on two separate incidents against the same victim. The Florida Supreme Court reversed the conviction, holding that the evidence failed to establish the essential element of intent to rob, and that the four-count charging structure improperly allowed conviction of both a felony and misdemeanor for the same transactions.
The conviction is reversed. The evidence failed to prove the essential element of intent to rob, as Fesser made no attempt to take anything from the victim despite opportunities to do so. Additionally, the charging structure was defective because assault with intent to rob and aggravated assault cannot both arise from the same transaction, and only conviction on counts charging assault with intent to rob or aggravated assault—not both—would have been proper.
“This Court has repeatedly held that where an indictment charges an assault with intent to commit a felony the intent is an essential ingredient of the crime charged and must be proven.”
Establishes the controlling legal principle that intent is a required element that must be proven for assault with intent to commit a felony.
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Join FLexlaw to unlock all legal intelligenceFesser was charged with assaulting Jacob Milchman on two occasions (February 13 and 27, 1933) with a deadly weapon. The first assault involved a wire …
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Plaintiff in error was informed against in the Criminal Court of Record of Hillsborough County in four counts. The first count charged assault on Jacob Milchman, February 13, 1933, with a deadly weapon with intent to rob. The second count charged the identical offense to have been committed on the same subject at the same place February 27, 1933. The third count charged the plaintiff in error with aggravated assault on Jacob Milch-man February 13, 1933, and the fourth count charged plaintiff in error with an aggravated assault on the same subject February 27, 1933. Trial resulted in. a verdict of guilty on all four counts and a sentence of five years in the State penitentiary at hard labor on the first count, judgment on the verdict as to the other counts having been reserved by *431the court. The instant writ of error was prosecuted to that judgment.
Under the information as cast a predicate was- laid for conviction of assault with intent to rob or of aggravated assault in one of each of two instances but it laid no predicate for conviction of both offenses in each of the two instances. In the four counts only two assaults are possible of proof. Under the law of this' State assault with intent to rob is a felony while aggravated assault is a misdemeanor. In the very nature of the case both could not grow out of the same transaction. The most that plaintiff in error could have been convicted of under the information would have been assault with attempt to rob under counts one and two or aggravated assault under counts three and four, as counts one and three and two and four involved identical charges.
As to counts one and two the evidence fails to show any intent whatever to rob. It shows that an assault was committed on the prosecuting witness' February 13 with a wire cable and that on February 27 a second assault was' committed on him at the same place and about the same time of day with a blackjack. It is shown that although no one else was present the assailant fled without an attempt to take anything from his victim or to further molest him in any way.-
This Court has repeatedly held that where an indictment charges an assault with intent to commit a felony the intent is an essential ingredient of the crime charged and must be proven. Davis v. State, 22 Fla. 633; Simpson v. State, 81 Fla. 292, 87 So. 920; Smith v. State, 87 Fla. 502, 100 So. 738; Montsdoca v. State, 84 Fla. 82, 93 So. 157.
For the reasons as thus stated the judgment below is reversed and a new trial awarded.
Reversed.
*432Davis, C. J., and Ellis, J., concur. •
Whitfield, P. J., and Buford, J., concur in opiriion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gardner v. State, 170 So. 2d 461 (Fla. 3d DCA 1965)…ounts charging, respectively assault with a deadly weapon with intent to rob and aggravated assault, where both charges arose out of the same transaction, a conviction could be had only on either count and not on both. Fesser v. State, 113 Fla. 430, 151 So. 889 (1934). Therefore, the appellant could have been sentenced on only one of the counts of assault. This holding should not be construed as a holding that the original counts were repugnant or that an election by the State should have been required. W…
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State v. Burnette, 188 So. 2d 347 (Fla. 1st DCA 1966)…rds “with intent to rape” would have to appear in the indictment. The necessity of such an allegation was declared in Davis v. State, 35 Fla. 614, 17 So. 565 (1895), Hamilton v. State, 133 Fla. 481, 182 So. 854 (1938), Fesser v. State, 113 Fla. 430, 151 So. 889 (1934), and Dallas v. State, Fla.App., 170 So. 2d 486 (1965). Similarly, the appellee contends in this appeal that the indictment insufficiently charges the crime of attempted rape because of the failure to allege an intent to rape. This contention…
Authorities Cited
- Montsdoca v. State, 84 Fla. 82 (Fla. 1922)
- Simpson v. State, 81 Fla. 292 (Fla. 1921)
- Smith v. State, 87 Fla. 502 (Fla. 1924)
- Davis v. State, 22 Fla. 633 (Fla. 1886)