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Ex-parte Bell-Opinion of Court.

Thus all distinctions of grand and petit larceny were abolished by either section, and the offence was only known as larceny whatever the amount or value. And thus the law stood until the adoption of the Constitution of 1868.

The eighth section of the Bill of Rights in this Constitution declares that "no person shall be tried for a capital or otherwise infamous crime, except in cases of impeachment. *** and in cases of petit larceny, under the regulation of the Legislature, unless on presentment or indictment by a grand jury."

The distinction of grand and petit larceny having been swept away before the Constitution was adopted, there is Lothing in the pre-existing statute by which the term petit larceny was used in the Constitution can be construed. Its definition must be therefore sought in the common rules of language aided by the common law. By the common law, it is said, the leading distinction between grand and petit larceny was in the punishment, and the degree of punishment depended upon the value stolen. I Bish. Crim. Law, $679.

It is urged here that the common law rule making the value of twelve pence the test of the character of the crime is revived by the constitutional provision referred to, and that the Legislature is powerless to change it. In this country we know no such value as "twelve pence," unless we are dealing in or with reference to the money of a foreign country. We think the framers of the Constitution, in using the words "petit larceny." did not intend to introduce any such standard of value as pounds, shillings and pence. The value of property stolen was, by the law of England, made the test in fixing the punishment. The value of the property stolen is also made the test in the American States where the distinction between grand and petit larceny has been preserved, and this value is not uni

Ex-parte Bell-Opinion of Court.

form in the several States. In New York it is fixed by law at twenty-five dollars. In South Carolina it is twenty dollars. In North Carolina all thefts are petit larcenies; and in many States these grades of larceny are not recognized. Wherever they are recognized the Legislature has named the value of property stolen to determine the penalty of the crime.

The act of 1832 adopting the common law of England in respect to crime specially excepted the modes and degrees of punishment, and, as already observed, this exception abrogated all degrees of larceny as they existed in England, because the degree depended upon the penalty, and the penalty depended upon the value of the stolen property.

The eighth section of the Declaration of Rights refers to petit larceny as a grade of crime which may be tried without the presentment of a grand jury, "under the regulation of the Legislature."

We cannot doubt that this provision recognizes the power of the Legislature to provide for the punishment of inferior grades of larceny as petit or small larcenies, fixing the value of property stolen as the standard by which the penalty shall be gauged; and that the Legislature may "regulate,” i. e., provide, for the trial of such petty crime before a judicial tribunal without presentment or indictment by a grand jury.

The stealing of property not exceeding twenty dollars in value is a misdemeanor, punishable by fine not exceeding one hundred dollars or imprisonment in the county jail not more than sixty days, or both such fine and imprisonment. McC.'s Dig., 388. Act of Feb. 1, 1869, Ch. 1693.

It is provided by Chapter 3272, Section 1, March 4, 1881, (McC.'s Dig., 662,) that Justices of the Peace shall have jurisdiction to try all cases of larceny, not charged as a

Hickox v. Anderson-Statement of Case.

second offence, when the value of the property stolen shall not exceed twenty dollars. This court, in The State vs. Buckman, 18 Fla., 267. denominated such offence a "petit larceny."

The value of the property stolen in this case was fifteen dollars. The Justice had jurisdiction of the subject-matter and of the person, and had under the statute power to try the accused and to render the judgment, of which complaint is made by the petitioner.

The writ is dismissed and the petitioner remanded.

FRED L. HICKOX, APPELLANT, VS. B. L. ANDERSON, AP

PELLEE.

1. In an action for the conversion of specific property, if the defendant fail to deny, upon demand made, his possession of such property, such failure will be regarded as an admission by him of such possession, and in the absence of any evidence to the contrary on the trial, is sufficient to sustain the action, notwithstanding a general denial in the pleading.

2. When the evidence is not conflicting, the plaintiff having made out his case, the defendant failing to introduce any evidence to controvert, and the verdict being squarely in opposition to all the evidence and the charge of the court, a new trial will be granted.

Appeal from the Circuit Court for Escambia county. In the month of January, 1882, Hickox brought his action in trover against Anderson, in Escambia county Circuit Court, for the conversion of sixty-nine pieces of pine timber. The defendant was an Inspector of Timber at Ferry Pass, and plaintiff alleged that defendant received said timber from him for inspection, and refused to deliver to him on demand. The defendant's plea was not guilty.

Hickox v. Anderson-Opinion of Court.

The cause was tried before a jury on the 26th day of April, 1882, and they found for the defendant. Judgment was thereupon ordered in favor of the defendant. The plaintiff thereupon moved for a new trial, which motion was denied, and he brings his case to this court by appeal. The grounds upon which plaintiff asked a new trial are as follows:

1st. The verdict was contrary to the evidence. 2d. It was contrary to the law.

3d. It was contrary to the charge of the court.

The assignment of errors is as follows: "The appellant assigns as error the refusal of the court below to grant the motion for a new trial."

The other facts are stated in the opinion.

John C. Avery and W. A. Blount for Appellant.

J. P. Jones and G. A. Stanley for Appellee.

MR. JUSTICE VAN VALKENBURGH delivered the opinion of

the court:

Hickox, the plaintiff in this action, alleges that the defendant, Anderson, converted to his own use sixty-nine sticks of hewn timber of the value of six hundred dollars, being the property of the plaintiff. The defendant denies the allegation.

The cause was tried at the Escambia Circuit in April, 1882, and the jury found a verdict for the defendant. The counsel for plaintiff moved for a new trial upon the following grounds:

1st. The verdict was contrary to evidence.

2d. It was contrary to law.

3d. It was contrary to the charge of the court.

The court denied the motion, and the plaintiff appeals to

Hickox v. Anderson-Opinion of Court.

this court and assigns for error: "The refusal of the court to grant the motion for a new trial."

The question, therefore, arises only upon the evidence before the jury.

The plaintiff to sustain his case introduced several depositions and witnesses. By Lewis Johnson he proved that Johnson was acquainted with the timber, which consisted of sixty-nine pieces, averaging about 100 feet; that he held it for the plaintiff; that he took charge of it at Castleberry, Alabama, and delivered it at Ferry Pass; that he held it to get his money out of it; that the plaintiff employed him to take it there for inspection; that he was working for the plaintiff, and delivered it to Mr. Anderson's timber agent; that Mr. Anderson was a Timber Inspector; that his agent gave him a receipt for the timber; that he carried such receipt to Mr. Anderson, who gave him twenty dollars to come home on, and told him that it was not necessary for him to give a receipt for the timber. The witness, Lampey, testifies that he looked at the timber to see the scores; that one George M. Jones sold it to the plaintiff: that he hauled or had hauled the sixty-nine pieces; that it was good timber excepting being soft edged; that he thought it would average more than one hundred feet. W. J. Ellis deposed that the plaintiff employed him to brand the timber and to superintend the running of it as far as Brewton; that he branded the larger portion of it with the letters F. H., according to instructions from the plaintiff; that it was branded with the knowledge and assent of George M. Jones from whom the plaintiff got it; that he turned over the timber at Brewton to Lewis Johnson to be carried to Ferry Pass for account of the plaintiff.

The plaintiff testified that this timber was his property, bought it in June, 1881, from George Jones; that he sent it to Ferry Pass. Florida, by Lewis Johnson for the pur

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