Summary
In Perkins v. State, 126 Fla. 707, 171 So. 655, the record was considered and though the judgment was held ineffective as a judgment of the defendant's guilt of the crime charged, the judgment was reversed and the cause remanded for further proceedings, which meant that it was remanded for the entry of a proper judgment on the verdict.
Summary of this case from Cancela v. StateOpinion
Opinion Filed December 28, 1936.
A writ of error to the Criminal Court of Record for Dade County, Ben C. Willard, Judge.
Roger Edward Davis, for Plaintiff in Error;
Cary D. Landis, Attorney General, and Roy Campbell, Assistant Attorney General, for the State.
The plaintiff in error was convicted on the second count of an information charging as follows:
"And the said Fred Pine, County Solicitor for the County of Dade, prosecuting for the State of Florida, in the said county, under oath, information makes that Afalia Perkins, alias Nat Perkins, of the County of Dade and State of Florida, on the 26th day of April, A.D. 1935, in the County and State aforesaid did then and there unlawfully have, receive and aid in the concealment of 2 cases of hats, of miscellaneous sizes and shapes, of the value of more than Fifty Dollars, good and lawful money of the United States of America, a further and more particular description of said property being to the County Solicitor unknown, of the property, goods and chattels of one Nat Roth, which property had been theretofore stolen, he, the said Afalia Perkins, alias Nat Perkins, at the time of so having, receiving and aiding in the concealment of the said property, then and there well knowing that the same had theretofore been stolen, taken and carried away, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida."
The information sufficiently charged the offense denounced by Section 5138 R.G.S., 7239 C.G.L.
The evidence admitted without objection was sufficient to show that the act of stealing the property was a felony and therefore the provisions of Section 5139 R.G.S., 7240 C.G.L., are not applicable.
No exceptions were noted to any evidence introduced, nor to the charge or instruction given the jury, nor were any special instructions requested by the defendant.
The verdict found the defendant, Afalia Perkins, alias Nat Perkins, guilty as charged in the second count. The judgment in part was as follows:
"It appearing unto this Court that you, Afalia Perkins, alias Nat Perkins, have been regularly tried and convicted of Possession of Stolen Property.
"IT IS, THEREFORE, THE JUDGEMENT of the law and it is hereby adjudged that you are and stand guilty of said offense."
It, therefore, appears that there is no judgment of conviction of the crime charged in the second count of the information. The gist of the offense is the unlawful receiving or aiding in the concealment of property, goods and chattels which have been theretofore stolen when at the time of so receiving or aiding in the concealment of such property the accused then and there "well knowing" that the same had theretofore been stolen, taken and carried away. The judgment does not adjudicate that the accused is guilty of the possession of stolen property under conditions which make such having, receiving and concealing a criminal offense.
It, therefore, follows that the judgment must be reversed and the cause remanded with directions that the accused be delivered unto the custody of the Sheriff of Dade County, Florida, and by him presented to the Criminal Court of Record at its next regular or special Term to be dealt with according to law.
So ordered.
ELLIS, P.J., and TERRELL and BUFORD, J.J., concur.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment.