The writ of error in this case brings for review judgment of conviction of the offense denounced by Section 5240 R.G.S., 7359 C.G.L., under an information charging that the defendants and another did in Duval County on the date named "then and there willfully and maliciously maim and disfigure a steer of the property, goods and chattels of one Alec Bell by shooting the said steer with a shot gun."
The plaintiff in error presents three questions for our consideration. The first question stated is:
"Where a person has knowledge that his property is going to be stolen, and he sends his agents to urge, co-operate with, and assist the accused in the taking of his property, and in the attempt to commit the larceny the accused and the agent of the owner maims and disfigures an animal of the owner in such attempt to commit larceny, can the accused be convicted of `willfully and maliciously maiming and disfiguring' said animal?"
The evidence shows that Alec Bell owned some cattle in Duval County; that he had been missing some cattle and believed the same to have been stolen. Andrew Bell, son of *Page 782 Alec Bell, was in charge of Alec Bell's cattle. Owen Bell Deese, a nephew of W.J. Bell, who was also a son of Alec Bell, went to W.J. Bell and reported that Morris Pringle had approached him, suggesting that they steal some cattle and that when Pringle approached Deese the second time in regard to stealing some cattle Deese told Pringle that he would go with him to steal some cows out of his (Deese's) uncle's pasture. Deese then went to his uncle, Andrew Bell, and told him of the plan. His uncle told him to go ahead. So the record shows that on the day of the alleged offense Deese got with Morris Pringle, Earl Parker and Sidney Gibbs and they went to the pasture of Andrew Bell intending to steal the steer. Morris Pringle shot the steer but the shot was too small to kill it. The steer fell to its knees when it was shot but jumped up and ran away. The steer was found by Andrew Bell that day wounded, with both eyes shot out and bleeding from the nose. Andrew Bell testified that he sent Deese with Pringle and the other defendants for the purpose of procuring evidence against them. There is no credible testimony that Deese persuaded Pringle and the others to commit the crime.
The evidence supports the theory that Deese entered into the conspiracy with Pringle and others for the purpose of procuring evidence which it was hoped would stop the depredations on the cattle of Bell and would result in the conviction of cattle thieves.
In this case the record would not warrant an acquittal on the theory of entrapment.
Questions 2 and 3 are as follows:
"If the accused in this case committed any crime whatsoever, was it not the crime of `willfully or wantonly and *Page 783 without malice towards the owner' maiming or disfiguring the animal, as provided under Section 7360 C.G.L., 1927?
"Where the evidence shows that there was no malice on the part of the accused towards the owner of animals and the evidence further shows that the owner thereof was willing for such act to be committed and prepared his property, co-operated with, and assisted the accused in the commission of such act, was not the criminal quality under Section 7359 C.G.L., 1927, to-wit: `the willfulness and malice,' wanting?"
The contention under these two questions is that for one to be convicted under Section 5240 R.G.S., 7359 C.G.L., the evidence must show not only a maiming of the animal but must show that it was done because of some ill will toward the owner of the animal. This conviction is probably well founded, but, admitting that it is true, the evidence here is sufficient to sustain a conviction under that construction because it is affirmatively shown that the act was done with the intent to deprive the owner of his property. The malice which is incident to the larceny is the intent to wrongfully deprive the owner of his property and it was that kind of malice which the defendants are shown to have entertained at the time the unlawful act was committed and which caused them to commit the unlawful act.
The evidence shows that the defendant Parker borrowed a shot gun and went with Pringle for the purpose of killing and stealing a steer; that Pringle in the presence of Parker shot the steer with the shot gun borrowed by Parker and delivered to him for that purpose. That the shot resulted in wounding and maiming the steer instead of killing it was merely an incident, but was the result of the malicious, willful and unlawful act of which both were equally guilty.
It is contended here in the brief that the court committed *Page 784 error in overruling the fourth ground of defendant's motion for new trial which was as follows:
"The guilt of the defendant, Sidney Gibbs, was as much, if not more, demonstrated by the evidence upon which the prosecution relied for conviction than was that for the defendant, Earl Parker, and W.M. Pringle."
Plaintiff in error relies on what was said in the opinion in the case of Courson v. State, 113 Fla. 123, 151 So. 383, where this Court said:
"A careful study of the record has convinced a majority of the Supreme Court that, in view of the jury's acquittal of Higginbotham, the guard, whose guilt was as much, if not more demonstrated by the evidence upon which the prosecution relied for conviction, than is that of Courson, the captain, who was found guilty, the ends of justice will be best subserved by awarding Courson a new trial, where his case can be considered by another jury in the light of the charge made in the indictment as it will stand against Courson alone upon remand of the cause for further proceedings to be had in the criminal court of record on a charge of manslaughter."
The difference between the case now before us and that of Courson v. State, supra, is that a majority of the Court in the Courson case were not satisfied that the evidence was sufficient to prove the guilt of Courson and apprehended that he was convicted because of considerations or influences outside of the evidence and it was thought that the acquittal of Higginbotham was an indication of that condition. While in this case we have no doubt of the sufficiency of the evidence to sustain the verdict and judgment. The question which comes to our mind in this case is not why Parker and Pringle should have been convicted under the evidence, but why was Gibbs acquitted under evidence which was entirely *Page 785 sufficient to have warranted his conviction along with that of Parker and Pringle.
We find no reversible error disclosed by the record and, therefore, the judgment should be affirmed.
It is so ordered.
Affirmed.
WHITFIELD, C.J., and TERRELL, J., concur.
BROWN, J., concurs specially.
ELLIS, P.J., and DAVIS, J., dissent.