Adkison v. State

• Decision Date: 02 December 1924
• Citation: 103 So. 121,88 Fla. 359
• Parties: ADKISON v. STATE.
• Court: Florida Supreme Court

103 So. 121

88 Fla. 359

ADKISON v. STATE.

Florida Supreme Court, Division B.

December 2, 1924

Rehearing Denied Feb. 2, 1925.

Error to Circuit Court, Walton County; A. G. Campbell, Judge.

C. F Adkison was convicted of selling intoxicating liquors as for a second offense, and he brings error.

Affirmed on rehearing.

Ellis and Browne, JJ., dissenting.

On Petition for Rehearing.

Syllabus by the Court

SYLLABUS

Judgment will be affirmed when appellate court is evenly divided. Where the members of the appellate court are equally divided in opinion as to whether a judgment on writ of error should be reversed or affirmed, and there is no prospect of a change of judicial opinion, the judgment should be affirmed, so that the litigation may not be unduly prolonged.

Offense of selling intoxicating liquors is defined in Rev. Gen. St 1920, § 5458. The offense of selling intoxicating liquors is defined in Rev. Gen. St. 1920, § 5458, and not in Acts 1923 c. 9266, amending Rev. Gen. St. 1920, § 5486.

Indictment charging unlawful sale of intoxicating liquor need not negative statutory exceptions. Indictment charging unlawful sale of intoxicating liquors, in violation of Rev. Gen. St 1920, § 5458, need not negative statutory exceptions in view of section 5468.

Element for beverage purposes held not part of definition of offense of unlawfully selling intoxicating liquor. Element for beverage purposes held not part of definition of offense of unlawfully selling intoxicating liquor, in view of Rev. Gen. St. 1920, § 5458.

Indictment held to charge second offense of unlawfully selling intoxicating liquors. Indictment held to charge second offense of unlawfully selling intoxicating liquors, in view of Acts 1923, c. 9266.

Defendant may admit previous conviction for selling liquor. Defendant may admit previous conviction for selling liquor.

COUNSEL

C. R. Mathis, of Bonifay, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.

OPINION

WEST J.

The writ of error in this case brings here for review a judgment of conviction upon a charge of selling intoxicating liquors, the accused having been previously convicted of a like offense.

The evidence is ample, if competent, to sustain the charge. If the judgment is to be disturbed, it must be because of harmful error in procedure and not failure in proof. The indictment filed September 14, 1923, omitting formal parts, is as follows:

'In the name and by the authority of the state of Florida.

'In the circuit court of the First judicial circuit of the state of Florida, in and for Walton county, at the fall term thereof, in the year of our Lord 1923, the grand jurors of the state of Florida, lawfully selected, impaneled, and sworn, inquiring in and for the body of the county of Walton, upon their oaths as grand jurors do present that C. F. Adkison, on the 13th day of September in the year of our Lord 1923, at and in the county of Walton, state of Florida, did then and there unlawfully sell, barter, and exchange alcoholic and intoxicating liquor, to wit, rum.

'Also that the said C. F. Adkison had previously been convicted of the crime of selling alcoholic and intoxicating liquor; that is to say, he, the said C. F. Adkison, on the 24th day of July, A. D. 1921, in Walton county, Florida, before A. R. Campbell, county judge of Walton county, state of Florida, was duly and legally convicted of the crime of unlawfully selling alcoholic and intoxicating liquor committed in the county of Walton, state of Florida, which conviction and judgment is in full force and not reversed--contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Florida.'

Two questions only need by discussed. The first is whether the proof of the alleged prior conviction is sufficient, or, stated more accurately, perhaps, whether the admission by the defendant of such prior conviction was sufficient to dispense with the necessity of producing the record of the prior judgment of conviction and proof of identity of the defendant with him who was previously convicted.

This court has recently held that in cases of this character the state should produce the record of the prior judgment of conviction in support of the allegation of the indictment. Gordon v. State, 86 Fla. 255, 97 So. 428; Norwood v. State, 80 Fla. 613, 86 So. 506. But in those cases the fact of former conviction was not admitted.

The following admission, made by the defendant after arraignment during the progress of the trial, was offered in evidence by the state:

'In this case the defendant admits that the county judge's record of Walton county shows that on the 24th day of July, 1921, that Charles F. Adkison was convicted of selling liquor, in the county judge's court, and the sale was claimed to be the 4th day of July, 1921, and that the judgment and sentence appears on page 98 of Minute Book No. 1, county of Walton, county judge's office, and there is no record of it having been reversed.'

The defendant could have admitted every material allegation of the indictment if he had seen fit to do so. But upon arraignment, a plea of not guilty was interposed. This plea put in issue every material allegation of the indictment. The admission by the defendant of the prior conviction operated to withdraw from the contested issues the allegation of the prior conviction. It the defendant could admit guilt of the crime alleged by a plea of gulilty, it would seem there could be no valid objection, ordinarily, to an admission by him in open court of one material allegation of the indictment, leaving all others to be proved. Besides, the defendant was sworn as a witness in the trial of the case, and admitted that he was convicted of 'selling liquor * * * about two years ago.' The formal admission by defendant of the alleged prior conviction was the equivalent of proof of the fact by the record of the prior judgment of conviction, and this, with the admission by defendant that he had been previously convicted of selling liquor, was sufficient proof of the alleged former conviction and the identity of the defendant with him who was previously convicted.

The second question is involved in more difficulty. The verdict returned found the defendant guilty as charged. Is this a sufficient verdict upon which to base a valid judgment? In State ex rel. Lockmiller v. Mayo (Fla.) 101 So. 228, the opinion is expressed that, in prosecutions of a second offender for a violation under this statute, the jury should be instructed that, in the event of finding the defendant guilty, to separately find and state their finding in the verdict whether the defendant had been formerly convicted as charged in the indictment. But the decisive question in that case was that the indictment charged no offense at all. It was not decided that a verdict which does not expressly find the former conviction alleged is fatally defective.

In this class of cases it is held that the prior conviction is a material ingredient of the aggravated offense that must be alleged and proved. People v. Sickles, 156 N.Y. 541, 51 N.E. 288; State v. Gordon, 35 Mont. 458, 90 P. 173. The plea of not guilty, therefore, puts in issue the allegation of the former conviction, as well as all other material allegations of the indictment. 16 C.J. 1346; State v. Gordon, supra; People v. Wheatley, 88 Cal. 114, 26 P. 95. Generally, a verdict of guilty as charged in s finding that every essential ingredient of the crime charged has been proved. Licata v. State, 81 Fla. 649, 88 So. 621. A plea of guilty in a case of this kind is a confession of the crime alleged in the indictment, including the prior conviction, and sentence is imposed as if there had been a verdict finding defendant guilty. People v. Delany, 49 Cal. 394. This is in accordance with the practice in this state.

There are cases which hold to the effect that it is necessary for the jury to find specifically on the issue of prior conviction when submitted to them under a plea of not guilty. But under the English practice, and generally in this country where this rule obtains, it is because of statutory requirements. State v. Smith, 129 Iowa, 709, 106 N.W. 187, 4 L. R. A. (N. S.) 539, 6 Ann. Cas. 1023; People v. Eppinger, 109 Cal. 294, 41 P. 1037; Sweeney v. Commonwealth, 39 S.W. 22, 18 Ky. Law Rep 1020; Herndon v. Commonwealth, 105 Ky. 197, 48 S.W. 989, 88 Am. St. Rep. 303; Hall v. Commonwealth, 110 S.W. 425, 33 Ky. Law Rep. 541; Satterfield v. Commonwealth, 105 Va. 867, 52 S.E. 979. There are, however,...