Bass v. Doolittle

• Decision Date: 04 May 1927
• Citation: 93 Fla. 993,112 So. 892
• Parties: BASS v. DOOLITTLE, Sheriff.
• Court: Florida Supreme Court

112 So. 892

93 Fla. 993

BASS v. DOOLITTLE, Sheriff.

Florida Supreme Court, Division A.

May 4, 1927

Error to Circuit Court, Brevard County; W. W. Wright, Judge.

Habeas corpus by D. C. Bass against L. W. Doolittle, Sheriff of Brevard County. Judgment remanding the petitioner to custody and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

On habeas corpus charge of possessing intoxicating liquors contrary to statute held sufficiently to state offense, even if imperfect in form. A charge that the accused 'unlawfully' had in his possession described alcoholic or intoxicating liquors 'contrary to the statute in such cases made and provided' sufficiently states an offense as against an attack by writ of habeas corpus, even if such charge be imperfect in form.

To test sufficiency of charge, habeas corpus avails only when act charged does not constitute crime or charge wholly fails to state offense; mere inartificiality in pleading offense will not warrant release on habeas corpus. As a means of testing the sufficiency of a charge against an accused, the writ of habeas corpus will avail only when the act charged as an offense does not constitute a crime under the laws of the state, or the charge wholly fails to state an offense. Inartificiality in pleading will not avail.

That possession of liquor was for lawful purpose or under lawful circumstances are matters of defense which charge need not negative. In a prosecution for unlawful possession of intoxicating liquor, if the possession thereof by the accused was for a lawful purpose or under lawful circumstances, those matters are matters of defense. It is not essential that they be negatived in the charge.

Marginal statement of charge in caption of cause entered on criminal docket of county judge's court and verdict should be interpreted with reference to formal charge; judgment in criminal prosecution in county judge's court should be construed in connection with charge in affidavit on which accused was tried and proceedings had thereon (Rev. Gen. St 1920, §§ 3331, 3337, 3350, 6001). In a criminal prosecution in the county judge's court, the marginal statement of the charge against the accused as it appears in the caption of the cause as entered on the criminal docket, as well as the verdict of guilty rendered in such prosecution, may be aided by and should be interpreted with reference to the formal charge contained in the affidavit and warrant upon which the accused is tried, and the judgment should be construed in connection with and with reference to the charge contained in such affidavit and the proceedings had thereon.

COUNSEL

Alto Adams, of Ft. Pierce, for plaintiff in error.

J. B Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for defendant in error.

OPINION

STRUM J.

This writ of error was allowed and taken to a judgment entered in a habeas corpus proceeding remanding the petitioner to custody for proper sentence.

To the writ of habeas corpus the respondent sheriff returned that he held the body of petitioner under authority of the following commitment issued out of and under the seal of the county judge's court for Brevard county:

'In County Judge's Court, Brevard County, State of Florida.

'State of Florida v. D. C. Bass.

'In the Name of the State of Florida, to the Sheriff or Any Constable of Said County:

'Whereas, in this court D. C. Bass was upon the 14th day of April, A. D. 1926, tried and convicted of the offense of having in his possession alcoholic liquor; and

'Whereas, on the 14th day of April, A. D. 1926, he, the said D. C. Bass, was sentenced by this court as follows, to wit, 500.00 costs & 6 months, & in default of payment of fine 3 additional months:

'You are therefore commanded forthwith to convey the said D. C. Bass to the county jail of said county and deliver him to the keeper thereof, who is hereby required to receive the said D. C. Bass into said jail and safely keep him until the judgment of this court is satisfied or he be thence discharged by due course of law.

'Given under my hand and seal this 14 day of April, A. D. 1926.'

In support of his contention that he is unlawfully detained, the petitioner, plaintiff in error here, urges, first, that he was not charged with the 'unlawful' possession of whisky, but merely with the 'possession of whisky,' and, since the possession of alcoholic or intoxicating liquors under certain circumstances and for certain purposes is lawful under our statutes, the charge of mere 'possession' of such liquors wholly fails to constitute a charge of a criminal offense. See Joiner v. State (Fla.) 109 So. 807. The offense for which petitioner was tried was designated in the caption of the cause as it appears on the criminal docket of the trial court, and in the foregoing commitment, as 'possession of whisky.' But the affidavit which constitutes the charge against him, and upon which he was tried, charges that on a named date 'D. C. Bass (the petitioner) did then and there 'willfully unlawfully' have in his possession or control a certain quantity of alcoholic or intoxicating liquors or beverages, to wit, 12 pints of Canadian Special whisky, 4 quarts of Canadian Special whisky, contrary to the statute in such cases made and provided and against the peace and dignity of the state of Florida.'

Upon trial under said charge, upon a plea of not guilty, the verdict was 'guilty.' Following that verdict the county judge pronounced judgment upon petitioner, and the commitment in question was issued forthwith.

We have held several times that a charge in substantially the foregoing language, containing as it does the charge that such possession was 'unlawful' and 'contrary to the statute in such cases made and provided,' etc., sufficiently states an offense as against an attack by writ of habeas corpus, even if such charge be imperfect in form. Carrol v. Merritt (Fla.) 109 So. 630; Spooner v. Curtis, 85 Fla. 408, 96 So. 836. The essential difference between the charge in this case and in the case of Joiner v. State, supra, is patent. As a means of testing the sufficiency of a charge against an accused the writ of habeas corpus will avail only when the act charged as an offense does not constitute a crime under the laws of the state or the charge wholly fails to state an offense. Inartificiality in pleading will not avail. White v. Penton (Fla.) 110 So. 533; Spooner v. Curtis, supra; In re Robinson, 73 Fla. 1068, 75 So. 604, L. R. A. 1918B, 1148. If the possession by the petitioner of the whisky was for a lawful purpose or under lawful circumstances, those matters are matters of defense. It is not essential that they be negatived in the charge. Spooner v. Curtis, supra; Carroll v. Merritt, supra.

Petitioner's second contention is that his detention is illegal because 'the minutes of the county judge's court from whence the commitment issued did not show any record of conviction or sentence recorded in the minutes of said court.' Petitioner therefore insists that the sheriff's return to the writ of habeas corpus 'failed to show any basis for the issuing of the commitment,' within the holding of this court in Wade v. Coniers, 109 So. 453.

The situation here presented differs essentially from that before the court in Wade v. Coniers, supra. In that case the prosecution was had in the county court. What was said therein necessarily has reference to a commitment issued out of that court. By section...