C. E. Tufts, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 41 Fla. 663

Taylor, C. J.: The plaintiff in error, on the 28th day of March, 1899, in the Criminal Court of Record for Orange county, was charged with criminal trespass upon land by information as follows: “The State of Florida. In the name and by the authority of the State of Florida : In the Criminal Court of Record of Orange county, Florida, for Orange county, at the March term thereof, in the year of our Lord one thousand eight hundred and ninety-nine, Orange county, to-wit: Be it remembered that R. G.

Robinson, County Solicitor for the county of Orange, prosecuting for the State of Florida in the said county in said court, under oath on the 28th day of March, A. D. 1899, information makes that C. E. Tufts, late of the county of Orange aforesaid, in the county and State aforesaid, laborer, on the 2nd day of June in the year of our Lord one thousand eight hundred and ninety-eight, with force and arms at and in the county of Orange, State of Florida, aforesaid, in and upon the lands of the Eppinger and Russell Company, a corporation under the laws of the State of New York, and Jacob D.

Nordlinger, to-wit: the south half of

section twenty-one, and the southwest quarter of

section twenty-two, and the west half of

section twenty-seven, and

section twenty-eight, and the northwest quarter of the northwest quarter of

section thirty-three, all in township twenty, south, range twenty-nine, east, county and State aforesaid, then and there the joint property of the said Eppinger and Russell Company and of the said Jacob D. Nordlinger, did wilfully commit a trespass by cutting and carrying away therefrom cypress timber, then and there standing and growing, of the value of five thousand dollars, of the property of the said Eppinger and Russell Company and of the said Jacob D.

Nordlinger, against the form of the statute in such case made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the State of Florida; wherefore the said R. G. Robinson, County Solicitor as aforesaid, prosecuting for said State as aforesaid, prays the advice of the said court in the premises, aiid that the said C. E. Tufts may be arrested and held for trial under the foregoing information, and that a capias may issue forthwith for his arrest.” Upon this information the defendant was tried and convicted, and took writ- of error.

The defendant moved in arrest of judgment upon the grounds, among others, that the information was bad for uncertainty, and because it did not charge a crime under the laws of the State of Florida. This motion was denied, and such ruling is assigned as error. It is contended here in support of this assignment that the information is bad because of its failure to allege an entry upon the land by the defendant, and that such entry was unlawful and felonious. This contention is untenable.

Section 2516, Revised Statutes, upon which this information is predicated is as follows: “Whoever wilfully commits a trespass by cutting, scraping, injuring or destroying timber or wood standing or growing on the land of another, or by carrying away any kind of timber or wood, cut down or lying* on such land, or by digging or carrying away any stone, ore, gravel, clay, sand, turf, or mould from such land, or by carrying away anything which is parcel of the realty, shall be punished as if he had stolen personal property of the same value.” It will be observed that the act herein prohibited, is not an entry upon land, but the injuring, destroying or carrying away of timber or wood therefrom.

And again, the

section by its own express language fully defines the term “trespass” that it employs: “Whoever wilfully commits a trespass.” How, or in what manner? “By scraping, injuring- or destroying timber or wood standing or growing on the land of another, or by carrying away any kind of timber or wood, cut down or lying on such land,” &c. The signification of the word “wilful” as used in this statute is that the acts prohibited must be done with an evil intent and without justifiable excuse, ■ and it is unnecessary in an indictment charging the offence, to do more than to allege, in the language of the statute, that the acts complained of were wilfully done.

Section 2894, Revised Statutes, provides that it shall be unnecessary to allege in an indictment that the offence therein charged was a felony, or feloniously done. We are of the opinion that this

section of the statute so fully defines the crime thereby prohibited that an indictment or information following its language, without enlargement, is sufficient; and that the court below committed no error -in the denial of the motion in arrest of judgment on the ground of any of the supposed defects in the information. The defendant pleaded autrefois acquit, as follows: “And the said C. E.

Tufts, in his own proper person, comes into court here, and, having heard the information read, says that the said State of Florida ought not further to prosecute the same against him because he says that heretofore, at this adjourned January term of the court on the 6th day of March, A. D. 1899, it was by the oath of R. G. Robinson, County Solicitor for the county of Orange, State of Florida, prosecuting for said State presented that the said C. E.

Tufts, late of the county of Orange aforesaid, in the county and State aforesaid, laborer, on the first day of April in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms at and in the county of Orange, State of Florida aforesaid, in and upon the lands of the Eppinger and Russell Company, a corporation under the laws of the State of New York, and Jacob D. Nordlinger, to-wit: the south half of

section twenty-one and the southwest quarter of

section twenty-two, and the west half of

section twenty-seven, and

section twenty-eight, and the northwest quarter of the northwest quarter of

section thirty-three, all of township twenty, south, of -range twenty-nine, east, county and State aforesaid, then and there the joint lands and property of said Eppinger and Russell Company and of the said Jacob' D. Nordlinger, did wilfully commit a trespass by cutting and carrying away therefrom cypress timber then and there standing and growing, of the value of more than twenty dollars, to-wit: of the value of ten thousand dollars, of the property of the said Eppinger and Russell Company and of the said Jacob D.

Nordlinger, against the form of the statute in such case made and provided, to the evil example of all others in like case offending and against the peace and dignity of the State of Florida; wherefore the said R. G. Robinson, County Solicitor as aforesaid, prosecuting for said State, prayed the advice of the court in the premises, and that the said C. E. Tufts might be arrested and held for trial under said information, and that a capias issue forthwith for his arrest, which information was duly signed by the said R. G.

Robinson, County Solicitor for the county of Orange and State of Florida, prosecuting for said State, and also duly sworn to by him as provided by statute, to which last mentioned information the said C. E. Tufts pleaded “not guilty,” and the said State of Florida joined issue on said plea, and a jury thereupon duly empanelled and sworn to try the issue upon their oath did say that the said C. E. Tufts was “not guilty” of the felony in said last mentioned information laid to his charge; whereupon it was considered by the said court that the said C. E.

Tufts be discharged, as by the record- thereof more fully and 'at large appears, which said judgment still remains in full force; and the said C. E. Tufts avers that he, the said C. E. Tufts, who was the defendant in the information cited in this plea and acquitted as aforesaid, are one and the same person, and not different and divers persons, and that the offence in the said last mentioned information set out and the one charged in the information to which this plea is pleaded are one and the' same offence, and not divers and different offences; and that the information to which the said C. E.

Tufts is now called upon to plead is for one and the same offence charged in the first mentioned information and of which he was acquitted. All of which the said C. E. Tufts is ready to verify. Wherefore he prays judgment and that by the court here he may be dismissed and discharged from the premises in the present information specified and contained.” To this plea the County Solicitor for the State filed the following replication: “Now comes the State of Florida by R. G.

Robinson, County Solicitor of said county, prosecuting for said county, and to the plea of defendant files this special replication to said plea, and says it is not true as alleged in said plea that ‘a jury duly empanelled and sworn to try the issue upon their oaths did say that the said C. E.

Tufts was not guilty of a felony in said last information laid to his charge,’ but that the truth is, that when said jury had been duly selected, sworn and empanelled, before any testimony had been introduced, and before the information had been read, the attention of the court was by the State’s counsel called to the fact 'that the information charged that the crime was committed on an impossible date, to-wit: on April 1st, 1899, whereupon the court upon ascertaining this to be true did state he would discharge the jury, and so stated; whereupon the defendant by his counsel said the defendant was entitled to a verdict of acquittal, and the court said it would be

an act of supererrogation as he was discharging the jury, but the court would instruct such a verdict at defendant’s request, and over objection of the State, the State claiming a discharge of the jury sufficient. Further replying the State says the information to which defendant now pleads is not same information on which he was arraigned and jury empanelled.” To this replication the defendant demurred. This demurrer was overruled, and such ruling is assigned as error. Issue was then joined by the defendant on the State’s replication..

On the same day with the joinder of issue on the replication the State’s attorney asked leave of the court to file a demurrer to the defendant’s plea of autrefois acquit, which was objected to by the defendant on the ground that it was too- late to demur, and because no cause was shown why same had not been done before. The court overruled these objections, and permitted the State to file a demurrer to the defendant’s plea; to which ruling the defendant excepted and assigns it as error. The State then demurred to the defendant’s plea of autrefois acquit.

This demurrer was sustained, and such ruling is assigned as error. In the case of Reeves v. State, 29 Fla. 527, 10 South. Rep. 901, this court has held that a demurrer to a replication to a plea in abatement reaches the plea if defective.

Since, therefore, we can consider the defendant’s plea in the discussion of the ruling upon his demurrer to the State’s replication to such plea, it become unnecessary, in view of the conclusions reached, to consider the several rulings of the trial court, permitting the State to demur to the defendant’s plea after it had replied to such plea and after joinder of issue on such replication, and in sustaining the demurer of the State to such plea. The court below erred in overruling the defendant’s demurrer to the State’s replication to his plea of autrefois acquit, but such demurrer should have been sustained.

The defendant’s plea of autrefois acquit is in the approved form, and alleges all the essentials to such a defense. It sets out the substantial parts of the record of the proceedings upon the former trial, showing a regular trial, verdict of not guilty and judgment thereon. It is true that the former information thus set out shows upon its face a fatal defect, namely, the allegation of an impossible date upon which the offence was committed (Dickson v.

State, 20 Fla. 800), but the record as pleaded does not show that any objections were taken thereto — the parties proceeding to judgment by a regular and orderly trial before a jury. Whatever may have been the effect of an acquittal upon a defective information or indictment at common law, as a bar to another charge for the same offence, there can be no doubt that under

Section 2888, Revised Statutes, which reads: “No person shall be held to answer on a second indictment, information or complaint, for a crime of which he has been acquitted, but such acquittal may be pleaded by him in bar of any subsequent prosecution for the same crime, notwithstanding any defect in the form or substance of the indictment, information or complaint,” such an acquittal may in this State be pleaded in bar of another information or indictment for the same offence.

The plea was, therefore, sufficient and not demurrable, and if the .State desired to contest its truth, it should have replied, denying the existence of the record pleaded, or the identity of the person or offences as alleged. But the replication filed by the State, did not deny any of those things. On the contrary, it undertook to avoid the allegations of the plea by setting up matters — not alleged to be a part of the record of the former acquittal pleaded —but dehors such record, which can not be averred ag'ainst.

Whether, if the record of the former acquittal shows that such acquittal was had under the circumstances disclosed in the replication, such acquittal would under the

section of our Revised Statutes quoted be a bar to another information or indictment for the same offence, in view of

Section 2889, Revised Statutes, we are not now called upon to decide. What we do decide is that the record set forth in the plea in this case does show a regular trial and acquittal — not upon the ground of a defective information or indictment, but in regular course before a trial jury — and to such a case the

section quoted first above does apply. Of course, the denial in the replication that the informations were the same tendered a wholly immaterial issue. The conclusions -reached renders it unnecessary to consider the other errors assigned. The judgment of the. court below is reversed, with directions to sustain the defendant’s demurrer to the replication of the State to the defendant’s plea of autrefois acquit, and to strike from the files the State’s demurrer to said plea, and for such further proceedings in the cause as may be conformable to law and this opinion.