Anderson v. State

• Decision Date: 14 October 1938
• Parties: ANDERSON v. STATE.
• Court: Florida Supreme Court

183 So. 735

134 Fla. 290

ANDERSON v. STATE.

Florida Supreme Court, Division B.

October 14, 1938

Error to Criminal Court of Record, Dade County; Ben C. Willard Judge.

George Anderson was convicted of unlawfully and feloniously assaulting another person with a deadly weapon with intent to kill, and of unlawfully possessing a pistol without having a license, and he brings error.

Affirmed.

COUNSEL William J. Pruitt, of Miami, and Julius F Parker, of Tallahassee, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for the State.

OPINION

PER CURIAM.

On the 27th day of August, 1937, the County Solicitor of Dade County, Florida, filed in the Criminal Court of Record of said County an information charging George Anderson, on the 1st day of August, 1937, in Dade County Florida, with an unlawful and felonious assault upon one Manuel B. Phillips with a deadly weapon, to-wit, a pistol, with the intent to kill and murder the said Manuel B. Phillips. The second county of the information charged George Anderson with the unlawful possession of a pistol, without having license from the County Commissioners of Dade County, Florida, and that the said George Anderson was not a Sheriff, Deputy Sheriff, City or Town policeman or marshal, or any other officer within the meaning of the Statute. On the 10th day of March, 1938, the defendant George Anderson, was arraigned in the Criminal Court of Record on the said information and at the time of said arraignment interposed a plea in abatement directed to each count of the said information. The said plea in abatement was marked Exhibit 'A' and is as follows:

'I. That the alleged offense as set forth in said information was committed within the jurisdiction of the 2nd District's Justice of the Peace, and there was held on the 4th day of August, 1937, before the Justice of the Peace of said District, who then and there had jurisdiction in said cause to hear and determine the same, a preliminary hearing and there appeared at said hearing, several witnesses, who were duly subpoenaed and who were duly sworn to speak the truth at said hearing and did testify. That the court secured jurisdiction over the person of this defendant by reason of affidavit filed in said court, a copy of which said affidavit is hereto attached, marked Defendant's Exhibit 'A' and made a part of this Plea as if herein incorporated at this point, that the said Ralph C. Pole was acting in the place and stead of the Honorable Thomas S. Ferguson, the duly qualified, appointed and acting Justice of Peace of the 2nd District of Dade County, Florida, who was absent from the jurisdiction of his court. That at the conclusion of said hearing, the Defendant, George Anderson, was duly and legally bound over to the Criminal Court of Record in and for Dade County, Florida, on the charge of assault with the intent to commit murder; and that thereafter, the County Solicitor in and for the County of Dade and State of Florida, filed the information now of record against the said George Anderson, charging him with assault with intent to commit murder, without having first subpoenaed before him the said witnesses to inform and advise the County Solicitor of the true facts pertaining to the said matter. But the said County Solicitor did file said information in said case, as aforesaid, upon the record made in said matter before the said Justice of the Peace and did not base said information upon any testimony taken by him by witnesses duly subpoenaed to appear and testify before him and therefore the said information filed in this cause is not based upon any sworn facts or testimony given by any person or persons before or to the said County Solicitor, but the same has been filed contrary to law.

'II. And for a further ground, this defendant says that by reason of the above and foregoing facts as set out, that this court is without jurisdiction to try this Defendant upon the information filed in this cause.'

'Affidavit.

'* * *

'Before me, Ralph C. Pole, Justice of the peace in and for daid County, personally came Manuel B. Phillips, who, being duly sworn, says that on the 1st day of August, A. D. 1937, in the County aforesaid, one George Anderson with force and arms did unlawfully, feloniously and from a premeditated design to effect the death of one Manuel B. Phillips, in and upon said Manuel B. Phillips, an assault did make with a certain deadly weapon, to-wit: a gun, a further and more particular description of said weapon being to affiant unknow, which said weapon was then and there loaded and charged with metal balls and power, and by him, the said George Anderson, then and there had and held in his hands, which said weapon he, the said defendant, unlawfully, feloniously and from a premeditated design to effect the death of the said Manuel B. Phillips, did then and there shoot off and discharge at the said Manuel B. Phillips, with intent him, the said Manuel B. Phillips, then and there unlawfully and from a premeditated design to effect the death of the said Manuel B. Phillips, to kill and murder, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Florida.

'Manuel B. Phillips

'Sworn to and subscribed before me this 2nd day of August, A. D. 1937.

'Ralph C. Pole

'Pro hac vice

Justice of Peace,

Second District.'

'[Seal.]

The State of Florida interposed a demurrer to the plea in abatement and the grounds thereof are, viz.:

'1. It affirmative appears from said Plea in Abatement that the defendant was caused to be arrested by an affidavit issued by a duly appointed, qualified and acting Justice of Peace acting in the District where said crime was committed.

'2. It affirmatively appears from said Plea in Abatement that a preliminary hearing was held at which witnesses testified and that prima facie at least such testimony was sufficient to prove the crime that the defendant was charged with.

'3. An affidavit having been filed in a court of competent jurisdiction, as required by law, setting out sufficient facts to constitute the crime charged, it was then not necessary for the County Solicitor to subpoena the witnesses before him and take any testimony concerning the offense.

'4. The laws of the State of Florida authorize and require that some person make an affidavit in the Justice of the Peace court having jurisdiction of the alleged offense before a warrant can issue and before a preliminary hearing can be had upon a charge as set out in the affidavit and under the laws of Florida the false making of such affidavit would constitute a perjury. Therefore, it was not necessary for the County Solicitor to subpoena the witnesses before him and have evidence under oath upon which he could base the filing of the information, because the affidavit alone was sufficient.'

The lower court, after argument of counsel, entered an order sustaining the demurrer as directed to the plea in abatement. The defendant was placed upon trial, a verdict of guilty was rendered, a ...