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Mas v. State

District Court of Appeal of Florida, Third District
May 6, 1969
222 So. 2d 250 (Fla. Dist. Ct. App. 1969)

Summary

affirming conviction for throwing a deadly missile, holding that language in the information charging that the missile was, "to wit: a fire bomb," was surplusage, and that the information contained the essential allegation that the missile would produce death or great bodily harm and did not require proof that the missile was a fire bomb under the statute

Summary of this case from Mitchell v. State

Opinion

No. 68-868.

May 6, 1969.

Appeal from the Criminal Court of Record, Dade County, Paul Baker, J.

John V. Ferguson, and Richard Kanner, Miami, for appellant.

Earl Faircloth, Atty. Gen., and Harold Mendelow, Asst. Atty. Gen., for appellee.

Before CHARLES CARROLL, C.J., and HENDRY and SWANN, JJ.


By an information the appellant was charged in a first count with throwing toward and upon an occupied vehicle "a certain missile which was capable of producing death or great bodily harm, to wit: a fire bomb," in violation of § 790.19 Fla. Stat., F.S.A. In a second count the appellant was charged with setting afire and burning a designated vehicle of value exceeding $25, in violation of § 806.03 Fla. Stat., F.S.A.

Section 790.19 deals with throwing (at or in places including an occupied vehicle) any missile which could produce death or great bodily harm. The offense proscribed by § 806.03 is third degree arson.

On trial by a jury the appellant was convicted of the offense charged in count one, and under count two was convicted of fourth degree arson, a lesser degree of the offense charged. He was adjudged guilty accordingly, and sentenced to confinement for five and two years respectively, to run concurrently.

The trust of appellant's argument is that he was denied a fair trial because the prosecution, over objection, made numerous references to "fire bomb," whereas, appellant contends the state failed to prove the missile was a fire bomb as defined by statute (§ 806.11 Fla. Stat., F.S.A.). We find no merit in that argument.

The definition of a fire bomb in § 806.11 is there stated to be for the purposes of that section of the statute, which makes it a crime to possess, manufacture or dispose of such an article for certain purposes, and subject to stated exceptions.

Here the missile performed as a fire bomb would, and the reference at trial to the missile as a fire bomb was not in the technical sense, but was descriptive of its character and effect. The information contained the essential allegation that the missile thrown was one which would produce death or great bodily harm, and the additional language of "to-wit: a fire bomb" was surplusage and did not require proof that the missile had the particular ingredients of a fire bomb as set forth in the statute relating to possession of fire bombs. When such an article is found in one's possession, it can be examined, and dismantled, to determine whether it is composed of the ingredients listed in the possession statute. But when, as here, the missile is thrown and explodes or burns, there would be no way to prove the exact nature and quantity of its ingredients. For the purposes of the crime charged in this case, it was the nature and capability of the missile as disclosed by its explosive or fire producing effect, rather than its exact ingredients, which were material.

The verdict was supported by competent substantial evidence, and no harmful error was shown.

Affirmed.


Summaries of

Mas v. State

District Court of Appeal of Florida, Third District
May 6, 1969
222 So. 2d 250 (Fla. Dist. Ct. App. 1969)

affirming conviction for throwing a deadly missile, holding that language in the information charging that the missile was, "to wit: a fire bomb," was surplusage, and that the information contained the essential allegation that the missile would produce death or great bodily harm and did not require proof that the missile was a fire bomb under the statute

Summary of this case from Mitchell v. State

In Mas v. State, 222 So.2d 250 (Fla. 3d DCA 1969), the object thrown was alleged to have been a type of fire bomb, but the State was unable to prove the exact nature of the object since it exploded or burned when it was thrown.

Summary of this case from Carter v. State
Case details for

Mas v. State

Case Details

Full title:JOSEPH FLAVIAN MAS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: May 6, 1969

Citations

222 So. 2d 250 (Fla. Dist. Ct. App. 1969)

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