semblage should have in the form of reso

lution or motion been adopted by the elec- EAST COAST LUMBER CO. v. WALTER tors present." WALTON CO.

4, 1924.)

(Syllabus by Editorial Staff.)

By unanimously voting at the meeting of (Supreme Court of Florida, Division B. April March 26th to organize a municipal government-which meeting was participated in by 47 of the registered voters of the territory proposed to be incorporated-by se lecting a name and seal, by determining the corporate limits of the proposed town, and electing municipal officers at the meeting of April 30th, the qualified voters present clearly expressed their intention to organize the town.

[4] The next attack is that the boundaries of the town as adopted at the meeting and recorded in the office of the clerk of the circuit court are vague, indefinite, and uncertain.

We think the description comes within the rule laid down by this court in Town of Enterprise v. State, 29 Fla. 128, 10 South. 740; Lane v. State, 63 Fla. 220, 57 South. 662, and that the description of the territory incorporated "is not so uncertain as to make it impossible to determine the territory intended to be included in the municipality," and, where such is the case, "the law is not void for uncertainty of descrip

tion."

The contention of the plaintiff in error that the answer does not give the names of the 47 registered voters who took part in the organization of the city, and does not allege that they were registered voters, or that they constituted two-thirds of those residing within the territory proposed to be incorporated, or that no less than 25 inhabitants of the territory proposed to be incorporated possessed the qualifications prescribed in the statutes of Florida participated in the meeting, is without merit.

There is nothing in the statutes that requires, either directly or by implication, that the names of the registered voters who take part in the organization of a town shall ap pear in the proceedings of the meeting.

Appeal and error 364 -Writ of error made returnable more than 90 days from its date will be dismissed.

A writ of error made returnable more than 90 days from the date thereof is in violation of Rev. Gen. St. 1920, § 2908, and will be dismissed.

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

Proceeding between the East Coast Lumber Company and the Walter Walton Company. Judgment for the latter, and the former brings error. Dismissed.

Tribble & Huntley, of Lake City, for plaintiff in error.

W. H. Wilson, of Lake City, for defendant in error.

PER CURIAM. The writ of error herein was dated and recorded June 9, 1923, and made returnable to this court on September 10, 1923, which return day, being "more than ninety days from the date of the writ," is in violation of the statute (section 2908, Rev. Gen. Stats. 1920), and the writ of error is dismissed. Anderson v. State, 73 Fla. 86, 74 South. 6; Gadsden v. State, 76 Fla. 543, 80 South. 308; Robinson Imp. Co. v. Jackson, 55 Fla. 657, 45 South. 987; Ates v. Langley, 61 Fla. 504, 54 South. 264; Ayers v. Daniels, 67 Fla. 482, 65 South. 660.

Dismissed.

WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

SMITH v. STATE.

(Supreme Court of Florida, Division A. May 21, 1924.)

(Syllabus by the Court.)

The allegations of the answer with respect to those who took part in the meeting, although not in the words used by the plaintiff in error, clearly show that the necessary. Mayhem 5-Specific intent required to 25 registered voters were there, and that they constituted two-thirds of those residing within the territory proposed to be incorporated.

We have carefully considered all the questions raised by the plaintiff in error and fail to find anything in the proceedings as shown by the record that warrant us in reversing the judgment of the lower court. The judgment is affirmed.

TAYLOR, C. J., and ELLIS, J., concur. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur in the opinion.

make act offense not presumed from doing of act.

Where a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with the specific intent.

2. Criminal law 24, 328-Rule as to presumption of criminal intent from commission of unlawful act not applicable to crime for which specific intent necessary; burden on state to prove specific intent necessary to make act an offense.

A presumption of a criminal intention may arise from proof of the commission of an unlawful act, but the general rule that, if it is

(100 So.)

proved that the accused committed the unlawful act charged, it will be presumed that the act was done with a criminal intention, does not apply in the case of crimes like burglary, assault with intent to kill, or rape, for which a specific intent is necessary. Here the burden is on the state to prove affirmatively, either by direct or circumstantial evidence, that the act was done with the requisite specific intent. West, J., dissenting.

[1, 2] In Simpson v. State, 81 Fla. 292, 87 South. 920, the rule is thus stated:

arise from proof of the commission of an un"A presumption of a criminal intention may lawful act, but the general rule, that if it is proved that the accused committed the unlawful act charged, it will be presumed that the act was done with a criminal intention, does not apply in the case of crimes like burglary, asasult with intent to kill, or rape, for which a specific intent is necessary. Here the burden

Error to Circuit Court, Volusia County; is on the state to prove affirmatively either by James W. Perkins, Judge.

James Garfield Smith was convicted of assaulting his wife with malicious intent to maim and disfigure her, and he brings error. Reversed.

Stewart & Stewart, of De Land, for plaintiff in error.

direct or circumstantial evidence that the act was done with the requisite specific intent.

"Where a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with that specific intent."

See Davis v. State, 22 Fla. 633; Clark v. State, 56 Fla. 46, 47 South, 481; Simpson v.

Rivers Buford, Atty. Gen., and J. B. State, 81 Fla. 292, 87 South. 920. Gaines, Asst. Atty. Gen., for the State.

BROWNE, J. The plaintiff in error was convicted of assaulting his wife, Maud Smith, with his fist, and striking out and destroying her right eye, with malicious intent to maim and disfigure her.

The evidence is undisputed that, on the afternoon of the 10th of August, Smith was intoxicated from drinking shine, and that he and his wife "were fussing and one word brought on another," and he struck her in the face with his fist, causing an injury to her eye which necessitated its being removed. It appears from the record that they had not had any previous quarrels, nor was there any ill feeling between them. Smith paid the doctor's bills and for an artificial eye for her. She made no complaint against him, and they lived together as man and wife from the time of the injury until after his indictment on the 22d of the following November.

These facts fail to establish malicious intent on the part of the plaintiff in error to maim and disfigure his wife by putting out and destroying her eye, as charged in the indictment, and no evidence was adduced from

There being no evidence to sustain the verdict, the judgment is reversed.

TAYLOR, C. J., and ELLIS, J., concur. WHITFIELD, P. J., and TERRELL, J., concur in the opinion.

Intent is an ele

WEST, J. (dissenting). ment of many crimes. Of necessity, if not confessed, it must be proved by circumstances. The court seems to hold in this case that the act of the accused in paying the doctor's bill and for an artificial eye for his wife after destroying the natural one tends to negative malicious intent and to exculpate him. This does not appeal to me as sound. Nor does the fact that there is no evidence that he had previously gone on a similar rampage and knocked out the other eye, or otherwise maimed her, tend to negative the alleged malicious intent. It seems to me that there is not in this record such absence of proof of malicious intent as to require a reversal.

DAVIS v. STATE.

which such malicious intent could reasonably (Supreme Court of Florida, Division A. May

have been presumed.

The rule is thus stated in Lawson on Presumptive Evidence, p. 331:

"Where a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with the specific intent."

See, also, People v. Plath, 100 N. Y. 590, 3 N. E. 790, 53 Am. Rep. 236; Roberts v. People, 19 Mich. 401.

In 16 C. J. 995, we find:

"The burden is on the state to prove that the accused had the specific intent involved in the charge, or to show facts from which it may be proved."

21, 1924. Rehearing Denied June

18, 1924.)

(Syllabus by the Court.)

I. Criminal law 1084-Writ of error operates as supersedeas on giving of statutory bond.

When a writ of error is taken to a judgment in a criminal case, it is the writ which operates as a supersedeas upon a bond being given as the statute requires.

2. Criminal law 1178-Assignments of error not argued will not be considered on appeal.

When there are several assignments of error and only one is argued, those which are not argued will not be considered by the appellate court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. Criminal law 753 (2)-Defendant not en-issued upon that date and returnable to this titled, as of right, to instruction to acquit.

The defendant is not entitled, as of right, to an instruction to the jury to return a verdict of acquittal.

4. Receiving stolen goods 8 (3)-Evidence held sufficient to sustain conviction.

Evidence examined and found sufficient to support the verdict of receiving stolen property knowing it to have been stolen.

court upon the 21st of April, 1924.

In approving the supersedeas bond the statute (section 6152, Revised General Statutes), was ignored, in that the affidavits of the sureties did not contain any description of their real property.

[1] It is the writ of error and not the bond which operates as a supersedeas, although a bond is required to be given in conformity with the provisions of the statute

Error to Circuit Court, Polk County; John before the writ of error so operates. See S. Edwards, Judge.

ELLIS, J. In October, 1921, the plaintiff in error was indicted for the larceny of a Ford automobile, the property of Mrs. W. O. Pearce, and for receiving the stolen machine knowing the same to have been stolen. The date of the alleged theft was August 14, 1921. The defendant was put upon trial on November 23, 1921. Upon motion the state attorney elected to prosecute upon the second count, which charged the defendant with receiving the stolen property knowing

it to have been stolen. There was a verdict of guilty as charged in the second count. The defendant was sentenced on the 29th of November, 1921, according to the record, but according to the bill of exceptions he was sentenced on the 25th of November.

Ninety days were allowed in which to make up and tender a bill of exceptions. A motion for a new trial was overruled on November 29, 1921. The bill of exceptions was presented on February 22, 1922, and signed on the 28th of that month. The bill of exceptions is not in narrative form; the testimony being set out in the form of questions and answers under the certificate of the judge that it was necessary to be presented in that form to be clearly understood. It contains a large proportion of irrelevant and immaterial statements of fact.

The record proper states that the motion for a new trial was overruled and sentenced imposed on the 29th of November. The bill of exceptions states that the motion for a new trial was overruled and supersedeas bond fixed at the sum of $5,000 on November 25, 1921. The supersedeas bond was given and approved on the last-mentioned date. On the 15th of March, 1924, more than two years and four months after the trial and sentence and the filing of the "supersedeas bond," the attorneys for the defendant filed their præcipe for a writ of error, which was

sections 6151, 6152, Revised General Statutes.

The record does not show whether during the period of two years and four months which elapsed between the date of the sentence and the suing out of the writ of error the defendant has been in confinement or not. If he has not, that fact is a matter for consideration by the executive department and not the judicial.

[2] The motion for a new trial contained many grounds, and so does the assignment of errors relied upon for the reversal of the judgment, but only one is discussed in the brief of counsel for the plaintiff in error, and that one is that the verdict was contrary to the evidence.

It is therefore the only one which will be considered. See Williams v. State, 25 Fla. 734, 6 South. 831, 6 L. R. A. 821; Holland v. State, 39 Fla. 178, 22 South. 298; Lamb v. State, 50 Fla. 106, 38 South. 906; Thomas V. State, 36 Fla. 109, 18 South. 331; Mathis v. State, 45 Fla. 46, 34 South. 287.

There were no errors in the trial of the case, which were the subject of any assignment not discussed, so glaring that this court would be required under the rule to reverse the case sua sponte.

It was

It is unnecessary to discuss the evidence in full. The evidence for the state tended to show that Mrs. Pearce was the owner of an automobile; the engine number was 4891886. It was of the type called a Ford. It was stolen on Sunday night, August 14, 1921, and later, on about the 31st of August, it was found in the defendant's possession. identified as the property of Mrs. Pearce, although the top and tires had been changed, the spot light removed, and the number of the engine changed from 4891886 to 4884886; the 9 having been changed to the figure 8 and the figure 1 to the figure 4. The alteration was crudely done and easily detected. The spot light and tires were also found in This evidence the defendant's possession. practically constituted the case as presented by the state.

[3] A motion to direct a verdict of not This was not error. guilty was denied. There is no rule requiring a motion of that character in a criminal case to be granted.

(100 So.)

See Brantley v. State, 84 Fla. 649, 94 South. 678; Tucker v. State (Fla.) 96 South. 10.

[4] If there was any doubt as to the sufficiency of the evidence as adduced by the state to support a verdict of guilty upon the second count of the indictment, the consideration of the entire evidence removes such doubt, and is quite sufficient to support the verdict.

The evidence offered in behalf of the defendant tended to show that he knew on the night of August 14, 1921, that Mrs. Pearce's automobile had been stolen. The defendant himself testified that on August 16th, Tuesday morning following, he exchanged a Buick car, which he had bought the day before from a man giving his name as J. C.

Edwards, for the Ford automobile. The exchange was made with the same person from whom the defendant had purchased the Buick the day before. The defendant had not seen the person before nor has he seen him since. The reason for the exchange of the Buick for the Ford, as given by the defendant, was that Edwards said "there was something wrong with the title" to the Buick. The defendant changed the tires on the Ford and removed the spot light. He drove the Ford to Tampa on Wednesday morning. On Friday following he drove the car to Miami and then to West Palm Beach. He advertised it for sale in Miami; then came to West Palm Beach, advertised it for sale there, left it in that city for sale, and came back to his home in another car which he had taken with him to the East Coast for the purpose of trading for a "speed boat." Failing to make the trade of that car for the speed boat he returned in it, leaving the Ford in West Palm Beach for sale.

There was other evidence consisting of statements by the defendant in their nature exculpatory and that of other witnesses tending to corroborate such statements of the defendant concerning the open, artless, undesigning use of the Ford automobile. He drove it about the streets of the town in the daytime, openly offered it for sale in two distant cities, but the numbers had been changed, the top exchanged for another, and the spot light removed and tires changed. The Ford had been disguised, and, according to a witness who was a dealer in secondhand cars, such disguises are often resorted to effectively to prevent prospective purchasers from recognizing the old car of their friends or acquaintances.

We are not prepared to state that the evidence considered in its entirety was insuflicient to support the verdict; so the judgment is affirmed.

DAVIS v. AMERICAN AGRICULTURAL
CHEMICAL CO.

(Supreme Court of Florida. May 29,

1924.)

(Syllabus by the Court.) Agriculture 7-Rules of pleading applicable to vendors of fertilizers.

While the manufacturers and vendors of fertilizers should be held to a compliance with the obligations imposed upon them by law, they have a right to demand that a cause of action be stated in due course of law against them facts. before they are required to take issue on the Stevens v. Independent Fertilizer Co., 73 Fla. 1050, 75 South. 539.

2. Bills and notes 476(1)-Plea of want of consideration, merely averring that note was without consideration, insufficient.

In an action upon a promissory note, a plea of want of consideration, which merely avers that there was no consideration for the note, is insufficient because it amounts to a plea of the general issue, which is forbidden Forbes v. Ft. Lauin an action of this kind. derdale Merc. Co., 83 Fla. 66, 90 South. 821.

Error to Circuit Court, Polk County; John S. Edwards, Judge.

Proceeding between J. R. Davis and the American Agricultural Chemical Company. Judgment for the latter, and the former brings error. Affirmed.

J. W. Brady, of Bartow, for plaintiff in error.

Landis, Fish & Hull and Erskine W. Landis, all of De Land, for defendant in error.

WEST, J. This is an action on several promissory notes. The declaration is in the usual form, declaring on each note in separate counts. Originally it contained several common counts, but as to these the action wes dismissed by plaintiff. The original pleas of defendant were held bad on demurrer. Thereafter amended pleas were filed. Demurrers to these pleas were also sustained. Defendant declined to plead further, and upon proof being filed final judgment was entered by the court in favor of plaintiff. Defendant took writ of error. The order sustaining the demurrer to defendant's amended pleas is assigned as error. In the brief on behalf of plaintiff in error, who was defendant below, it is stated that the only question presented is whether there is error in the orders sustaining plaintiff's demurrer to the pleas of defendant.

[1] The second amended plea admits defendant's liability upon one of the notes sued on, and plaintiff's right to recover the amount of this note, but, with respect to the other notes, it is averred, in substance, TAYLOR, C. J., and BROWNE, J., concur. that they were for commercial fertilizer, deWHITFIELD, P. J., and WEST and TER-livered to defendant by plaintiff from time RELL, JJ., concur in the opinion.

to time as his needs required, sold under a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes