Pottinger v. State

165 So. 276, 122 Fla. 405, 1936 Fla. LEXIS 878

• Court: Supreme Court of Florida
• Decided: January 22, 1936
• Status: Published

Opinions

Terrell, J.

Plaintiff in error was informed against, tried, and convicted in the Criminal Court of Dade County for the larceny of an automobile contrary to Section 5142, Revised General Statutes of 1920, Section 7243, Compiled General Laws of 1928. He was sentenced to five years in the State Penitentiary and now seeks relief from that judgment by writ of error.

It is contended that the verdict was contrary to the law and the evidence, that the charge of the court did not correctly state the law of the case, and that error was committed in the refusal of charges requested by the plaintiff in error.

The record reveals that plaintiff in error was a young man twenty-one years of age, he was employed in the county, and received his pay envelope at'noon on the day the offense for which he stands convicted is alleged to have been committed. In the afternoon in the exercise of his personal liberty and democratic propensity, he undertook to visit and patronize all the barrooms and night clubs in the Miami area. Like the Prodigal Son, he had friends a plenty until the collapse of his pay envelope when all forsook him but one named Robinson. Having become footsore and weary and his belly filled with “liquor, beer, and other stuff” instead of corn husks, he and Robinson, who had heretofore traveled on foot, entered the automobile of the prosecuting witness which they found parked on the street unlocked, and continued their visitations as before.

The missing automobile was promptly reported to the police department and was located before midnight at one of the night clubs near by. Robinson was in the car and was arrested when it was apprehended, but plaintiff in error was patronizing the club. On his return to the car a little later -the glimpse of a cop standing by reacted like a transfusion of rabbit blood, agitating him to flee under .fire, but he was arrested during the night in a downtown hotel. The car was returned to the owner the following day unharmed.

The information did not follow the statute (Section 7243, Compiled Geenral Laws of 1927) under which it was brought and the evidence to prove the offense charged falls short of that degree of certitude required under our decisions. We find nothing in the evidence as summarized to show a felonious intent to steal and permanently deprive the owner of the automobile which is a necessary ingredient to the crime charged. Granquist v. State, 86 Fla. 32, 97 So. 205; Morton v. State, 72 Fla. 265, 73 So. 187; Hogan v. State, 50 Fla. 86, 39 So. 464; Smith v. State, 87 Fla. 502, 100 So. 738.

The trial court committed reversible error in charging the jury that “under the law there could be no further prosecution about this transaction.” At best the evidence would support nothing more than a charge under Section 5229, Revised General Statutes of 1920, Section 7348, Compiled General Laws of 1927. The instant prosecution would not bar one under the latter act.

The offense for which plaintiff in error stands convicted is entirely separate and distinct from that defined and punished by the last cited statute. The prohibition of the com mon law and our Constitution against second jeopardy for the same offense has reference to the identical act or crime. Not the same offense eo nomine, but by the same crime, transaction, or omission, the test being whether the defendant has been twice in jeopardy and not whether he has been tried before for the same act. 16 C. J. 263; Wallace v. State, 41 Fla. 547, 26 So. 713.

Under the facts as presented plaintiff in error was entitled to the charges requested and refused, but it becomes unnecessary to discuss them.

The judgment below is reversed.

Reversed.

Whitfield, C. J., and Buford and Davis, J. J., concur. Ellis, P. J., and Brown, J., dissent.