McKENNA v. STATE, 161 So. 561

BUFORD, Justice. Writ of error here is to review judgment of conviction of grand larceny. The subject of larceny alleged was forty boxes of grapefruit of the value of $54. The amount and value of the fruit, together with its felonious asportation by the accused, was sufficiently established by substantial proof. It is contended that one may not be prosecuted for grand larceny of grapefruit which he has stolen from trees because it is not the subject of larceny. This contention is not tenable. See Summerlin v. Orange Shores, Inc., 97 Fla. 996, 122 So. 508, where we held such fruits of trees to b'e chattels.

Also see Curington v. State, 80 Fla. 494, 86 So. 344. It is also contended that the provisions of

section 5266, R. G. S.,

section 7385, O. G. L., precludes the prosecution for the offense of grand larceny where the facts are as those presented here. That

section is designed to denounce and punish the severing of fruit and crops from the freehold as a trespass, but it was never intended to be used as a shield from prosecution for larceny where the facts warrant such prosecution. Accused was indicted at the spring term of the circuit court of Brevard county, was arraigned, and pleaded “not guilty.” Then, on motion of accused, the case was continued until the next term of the court. At that term of the court accused filed a motion to be allowed to withdraw his plea in bar and to file a plea in abatement. He tendered his proposed plea in abatement.

The plea did not allege sufficient facts to constitute a good plea even if it had been timely filed. A plea in abatement must be filed before the entry of a plea in bar. Lake v. State, 100 Fla. 673, 129 So. 827, 131 So. 147. In 8 R. C. L. 113, it is said: “Where a defendant desires to take advantage of 'irregularities occurring before arraignment he should specially plead them in abatement of the proceeding. Defects in the indictment are thus to be taken advantage of, as, for instance, that it is not signed by the foreman of the grand Jury.

This plea is proper in the case of irregularities not apparent of record as well as in those that are so apparent, and it is sometimes provided by statute that when extrinsic facts are relied on they must be supported by proof of the truth thereof by affidavit or other evidence. As to the time of pleading, such a plea must always precede the plea of not guilty, because a plea of not guilty waives all precedent irregularities.” Other assignments of error have been examined, and we find no reversible error. Judgment affirmed. DAVIS, O. J., and WHITFIELD and TERRELL, JJ., concui’.