Davis v. State

Citations

• 22 Fla. 633

Syllabus

<p>1. Where a defendant is indicted for the commission of an offence with intent to commit another, as for instance, rape, it devolves upon the prosecution to prove some act or deed evidencing such intent in order to warrant conviction of the defendant.</p> <p>2. Material averments in an indictment must be proved. If a variance occurs between a material averment and the proof, the prosecution, upon whom the burden lies of establishing such averment, will he defeated.</p> <p>8. The plaintiff in error was indicted, and such indictment contains three counts : First, for breaking and entering a dwelling house with intent to ravish and carnally know a young lady. Second, for breaking aud entering with intent to steal and carry away property of one person. Third, for breaking and entering with intent to steal and carry away goods and property of another person. The jury found the defendant guilty upon the first count; Hein, To be error, as there was no evidence of any such intent.</p> <p>4. The allegation of the intent in this case was an essential and material allegation, and it was necessary for the prosecution to prove facts in order to show beyond a doubt what that intent was.</p> <p>5. Where there is no evidence to warrant the finding of the jury, this court will overrule the judgment.</p>