Brown v. State

• Decision Date: 04 May 1943
• Citation: 13 So.2d 458,152 Fla. 853
• Parties: BROWN v. STATE.
• Court: Florida Supreme Court

13 So.2d 458

152 Fla. 853

BROWN v. STATE.

Florida Supreme Court

May 4, 1943

Rehearing Denied June 4, 1943.

Appeal from Circuit Court, Walton County; R. A McGeachy, judge.

W. W Flournoy, of De Funiak Springs, for appellant.

J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen for appellee.

BUFORD, Chief Justice.

Officers, having concealed themselves near appellant's home, watched appellant hide something in bushes near the house which he occupied and immediately afterwards investigated and found the article which they had watched the appellant place in the bushes to be a half-gallon of moonshine whiskey on which the excise tax alleged to be required under the Beverage Act of the State of Florida had not been paid.

Information was filed, charging as follows: 'That on the 16th day of May, 1942, at and in the County of Walton, State of Florida, A. C. Brown and Mrs. A. C. Brown did unlawfully remove, deposit and conceal and were unlawfully concerned in the removing, depositing and concealing a beverage for and in respect whereof a tax is imposed by the Beverage Act of Florida, to-wit: four and one-half gallons, more or less, of Moonshine whiskey, with intent to defraud the State of Florida of such tax, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida.'

The information was not attacked by motion to quash, or otherwise. Neither was the sufficiency of the information challenged in the trial court.

Section 562.32 Fla.Statutes 1941, F.S.A. § 562.32, provides: 'Every person who removes, deposits, or conceals, or is concerned in removing, depositing or concealing any beverage for or in respect whereof any tax is imposed by the beverage law or would be imposed if such beverage were manufactured in or brought into this state in accordance with the regulatory provisions thereof, with intent to defraud the State of Florida of such tax or any part thereof, shall be guilty of a felony and upon conviction shall be punished by a fine of not more than five thousand dollars or by imprisonment in the state penitentiary for a term of not less than one year or more than five years.' (Italics supplied.) It is, therefore, observed that the information is substantially in the language of the statute. See Lake v. State, 100 Fla. 370, 129 So. 832; Sallas v. State, 98 Fla. 464, 124 So. 27; Finch v. State, 116 Fla. 437, 156 So. 489; Tubb v. Mayo, 128 Fla. 190, 174 So. 325.

Appellant, through his counsel, has stated several questions, but only argues the 1st and 2nd questions and thereby waives all others. The 1st question is: 1. 'Was the information fatally insufficient, in that it did not allege that the tax was not paid?' And the 2nd question is: 2. 'Does the judgment and sentence for the term of four years in the state prison for the offense charged violate Section 8 of the Declaration of Rights of the Constitution of Flroida?'

Appellant relies with confidence on the case of Nowling v. State, Fla., 10 So.2d 130, and the case of Allred v. State of Florida, Fla., 10 So.2d 131. We have examined the transcripts of records in these two cases and find that the informations filed in those cases were in all respects, except as to names and dates and quantities of moonshine whiskey, identical with the information filed in this case. We also find that in neither of those cases was the sufficiency of the information attacked in the trial court.

It is the view of the writer of this opinion, and of some other Justices of this Court, that the conclusion reached on the ground stated in the two cases above cited was erroneous and contrary to established law and should, therefore, be overruled, although the Information was void for the reasons which will be hereinafter stated.

We hold that the correct legal principles controlling in this case, and which should have been applied in those cases, are those enunciated in the opinion prepared by Mr. Justice Chapman and adopted by the Court in the case of West v. State, 149 Fla. 436, 6 So.2d 7, 8. In that case we said: 'The failure of the information to set out by appropriate allegations the truth about the possession of a concealed weapon by appellant on February 15, 1941, presents a very serious question. See Fudge v. State, 57 Fla. 7, 49 So. 128, 17 Ann.Cas. 919; State ex rel. Reed v. Blitch, 97 Fla. 260, 120 So. 355; Hall v. State, 136 Fla. 644, 187 So. 392. It is probable that the trial court would have sustained a motion to quash thereby correcting the error appearing in the information had it been directed to his attention prior to the trial of the case. The Criminal Code [Ch. 19554, Acts of 1939 F.S.A. § 901.01 et seq.] requires that motions to quash shall be heard before the filing of a plea to the information.' See also Craton v. Sinclair, Sheriff, Fla., 11 So.2d 475. In that case the infirmity of the information was brought to the attention of the court in the motion for a new trial, while in the instant case the question appears by the record never to have been presented to the trial court at all.

As has been stated, the information is substantially in the language of the statute. The information, however, goes further and charges that the beverage alleged to have been concealed was 'moonshine whiskey'. Section 568.07, F.S.A. § 568.07, provides in effect that it is sufficient under the information charging violation of law in connection with intoxicating liquors to prove that the liquor was such as is generally known by certain names and, among others, the statute mentions 'moonshine whiskey'. So it is that the description of the liquor involved in this case as moonshine whiskey was sufficient to advise the accused of the character of the commodity involved in this prosecution. It is a matter of common knowledge, of which this Court must take judicial cognizance, that that commodity known as moonshine whiskey is an alcoholic liquor manufactured without the protection of, and contrary to, law in respect to which to tax is either levied or may be collected.

Therefore, it appears that the information charges that the accused 'did unlawfully remove, deposit and conceal and were unlawfully concerned in the removing, depositing and concealing a beverage for and in respect whereof a tax is imposed by the Beverage Act of Florida'. The information did not stop here, however, but further averred 'to-wit: four and one-half gallons more or less of moonshine whiskey with intent to defraud the State of Florida * * *'. Thus, the latter allegation of the information directly contradicted the former allegation and showed upon its face that the liquor involved was not a liquor for and in respect whereof a tax is imposed by the Beverage Act of Florida. The result was, and is, that the information failed to charge any offense against the laws of the State of Florida. A trial under such a void charge was without legal foundation and was not sufficient to constitute jeopardy. See 15 American Jurisprudence 49, Sec. 374. Also see Shoener v. Commonwealth of Pennsylvania, 207 U.S. 188, 28 S.Ct. 110, 52 L.Ed. 163; Black v. State, 36 Ga. 447, 91 Am.Dec. 772, overruled on another point by Brown v. State, 109 Ga. 570, 34 S.E. 1031; Bennett v. Commonwealth, 150 Ky. 604, 150 S.W. 806, 43 L.R.A.,N.S., 419; State v. Schyhart, Mo.Sup., 199 S.W. 205, citing R.C.L.; State v. Empey, 65 Utah 609, 239 P. 25, 44 A.L.R. 558.

We come now to the second question insisted upon for reversal. In the Nowling case, supra, it was said: 'We think the punishment imposed in view of the offense charged was contrary to Section Eight, Declaration of Rights * * *.' After further consideration of the question here under review Mr Justice BROWN, Mr. Justice THOMAS, Mr. Justice ADAMS, Mr. Justice SEBRING and the writer are of the opinion that the holding in the Nowling case in this regard should be overruled, while Mr. Justice TERRELL and Mr. Justice CHAPMAN entertain the view that we should adhere to what was said in that opinion. The law appears to be well settled, as stated in 15 American Jurisprudence 174, Sec. 526, as follows: 'As a general rule, in cases where the objection is to the particular sentence, and not to the statute under which it has been imposed, a sentence which is within the limit fixed by statute is not cruel and unusual and is therefore valid, no matter how harsh and severe it may appear to be in a particular case, because the constitutional prohibition has reference to the statute fixing the punishment, and not to the punishment assessed by the jury or court within the limits fixed by statute. If the statute is not in violation of the Constitution, then any punishment assessed by a court or jury within the limits fixed thereby cannot be adjudged excessive, for the reason that the power to declare what punishment may be assessed against those convicted of crime is not a judicial power, but a legislative power, controlled only by the provisions of ...