M. J. Preston, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 41 Fla. 627

Taylor, C. J.: The plaintiff in error and one Ed. Sellers were jointly tried at the March term, 1899, of the Criminal Court of Record for Duval county upon an information charging them jointly with wilful trespass upon the land of another. The trial resulted in the acquittal of Sellers and the conviction of the plaintiff in error, and from the sentence imposed he brings his case here by writ of error.

At the trial the defendant’s counsel requested the judge to give the following instruction to the jury: “If you believe from the evidence that defendant was ever agent for Sophia Simmons, and said agency had not been terminated, or that Sophia Simmons after being informed that Preston was having the sand removed from said premises, and- that she concurred in the removal, or that she afterward told parties that whatever Preston did would satisfy Her, then he acted as her agent and you should acquit him.” But the judge refused to give said instruction, and this refusal is assigned and urged as error.

The trespass, under the statute upon which this information is based,

Section 25x6, Revised Statutes, must be “wilfully” committed, in order to be criminally punishable, and this essential “wilfulness,” in the sense in which the word is used in the statute, can not exist when the acts comprising the alleged trespass are committed by and with the consent, or under the authority, of the owner of the land alleged to- have been trespassed upon. State v. Preston, 34 Wis. 675; State v. Gardner, 2 Mo. 22; Commonwealth v. Kneeland, 20 Pick. 206, text 220; State v. Clark, 29 N. J. L. 96; Boykin v. State, 40 Fla. 484, 24 South. Rep. 141.

But while this idea is confusedly held out in the refused instruction, it is so coupled with another erroneous proposition as to render the charge as framed improper. The erroneous proposition of the- charge is as follows: “If you believe from the evidence that defendant was ever agent for Sophia Simmons, and said agency had not been terminated, or,” &c.

It will be observed that the agency behind which the defendant seeks to shield himself in this request is not confined to the subject-matter of the alleged trespass, but, according to the proposed instruction, if he was her agent merely for collecting debts, or to keep store, or for any other purpose foreign to the subject-matter of the trial, it asks for an acquittal. This vitiated the charge.

If, in the removal of the sand, that was the alleged trespass, he acted under the authority of the owner of the land from which it was taken, as the agent of such owner, then, as before seen, he could not be convicted; but if he was agent for the owner for some other purpose, and the removal of the sand did not fall within the scope of such agency, then in its removal he might be a trespasser. There was proof that some time prior to the alleged trespass the defendant acted as rent collecting agent for the prosecutrix but that such agency had ceased.

The defendant claimed that he was agent for the prosecutrix for the removal of this sand, but the prosecutrix denied this, and for these reasons there was no error in the refusal of the requested instruction.

In the bill of exceptions it is recited that the judge notified counsel on both sides before the testimony closed that if they had charges they desired the judge to give, they must hand them in or request them prior to the closing of the testimony, and that the above refused instruction was requested after the close of the testimony, after the argument of the case, and after the court had given its charge to the jury, and it would seem from this recital that the requested instruction was refused upon the supposed ground of the tardiness of the request therefor.

The authorities are in conflict as to whether trial judges have the power thus to limit the time within which they will entertain requests for instructions, but we are of the opinion that the greater weight of reason is with those cases that hold that it is the right of either party to request instructions on the law of the case at any time up to the retirement of the jury to consider of their verdict, and even after the jury have retired, in cases where they, before verdict, come into court for new instructions from the court, if the new instructions then given suggest other proper instructions necessary to give the whole law of the case clearly and fully to the jury; and that, when so requested, it will be error for the judge to refuse to give them merely on the ground that the request for them came too late, if they propound correct propositions of law, and have not already been substantially given. 2 Thompson on Trials, §§2359, 2361, 2362, and authorities there cited; Dixon v.

State, 13 Fla. 636. The refusal of the defendant’s motion for a new trial is assigned as error, upon the ground that the verdict is contrary to the evidence. This assignment is well taken. The information upon which the defendant was tried alleges that the trespass was upon “lot number thirteen (13) in block number two- (2) in A. B. Campbell’s .Addition to LaVilla ini the city of Jacksonville.” The proofs do not make out this charge.

Various witnesses testify that the lot from which the sand was removed was on Campbell’s Hill, and others put the lot at the intersection of differently named streets in Jacksonville ; but nowhere is it shown in the proofs that the particularly described lot named in the information has ever been trespassed upon by the defendant or any one else. This was fatal to the conviction, and a new trial should have been granted. The judgment of the court below is reversed and a new trial ordered.