Coleman v. State Ex Rel. Jackson

• Decision Date: 28 November 1939
• Citation: 193 So. 84,140 Fla. 772
• Parties: COLEMAN, Sheriff v. STATE et rel. JACKSON.
• Court: Florida Supreme Court

193 So. 84

140 Fla. 772

COLEMAN, Sheriff v. STATE et rel. JACKSON.

Florida Supreme Court

November 28, 1939

On Rehearing Jan. 16, 1940.

En Banc.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Habeas corpus proceeding by the State of Florida, on the relation of Costello Jackson, against D. C. Coleman, as Sheriff of Dade County, Florida, wherein Costello Jackson sought to be discharged from the Sheriff's custody. To review a judgment discharging Costello Jackson from the Sheriff's custody, the State of Florida brings error.

Reversed.

On Petition for Rehearing.

COUNSEL George Couper Gibbs, Atty. Gen., and Thomas J Ellis, Asst. Atty. Gen., for plaintiff in error.

Rosenhouse & Rosenhouse, of Miami, for defendant in error.

OPINION

CHAPMAN Justice.

The record in this case discloses that at the February term 1938, of the Criminal Court of Record of Dade County Florida, Costello Jackson was informed against in three separate counts by the County Solicitor of said county. He was arraigned on said information and entered a plea of guilty as to count one, and counts two and three thereof, on motion of the County Solicitor, were by an order of the trial court nolle prossed. The Court sentenced the defendant to serve a period of six months at hard labor in the State prison.

Count one of the information is drafted under Section 4 of Chapter 18015, Laws of Florida, Acts of 1937. On March 11, 1939 Costello Jackson filed his petition in the Circuit Court of Dade County, Florida, alleging that he was being unlawfully detained by the Sheriff of Dade County, Fla., and prayed for an order of discharge. The writ was issued and a return thereof as made by the sheriff was that he held the petitioner under and by virtue of a commitment issued out of the Criminal Court of Record of Dade County, Florida, on the aforesaid judgment of conviction.

Counsel for petitioner moved the court for a discharge from custody on the grounds: (a) That the information is wholly void and does not charge a crime under the laws of Florida; (b) that the information fails to allege that petitioner 'knowingly' kept in his possession beverage containing more than one per cent of alcohol; (c) that Section 4 of Chapter 18015, Laws of Florida, Acts of 1937, under which count one of the information is drafted, is unconstitutional and void. The lower court sustained the motion of the petitioner and entered an order discharging him from the custody of D. C. Coleman, as Sheriff of Dade County, Florida, and the State of Florida has obtained a writ of error to said judgment of discharge, perfected an appeal to this Court and the case is here for review.

It is fundamental that habeas corpus is not a remedy for relief against imprisonment under a warrant or indictment that charges a criminal offense defectively or inartifically. See Bass v. Doolittle, 93 Fla. 993, 112 So. 892; Ex parte Garvey, 84 Fla. 583, 94 So. 381; Ex parte Amos, 93 Fla. 5, 112 So. 289; Lehman v. Sawyer, 106 Fla. 396, 143 So. 310.

Likewise it is well established that while habeas corpus is not a remedy against a warrant or indictment that charges a criminal offense defectively or inartificially, yet it may be used as a remedy where the charge made does not constitute a crime under the laws of Florida by reason of the statute under which the charge is made being unconstitutional or when the charge wholly fails to allege a crime. See Lewis v. Nelson, 62 Fla. 71, 56 So. 436; Cooper v. Lipscomb, 97 Fla. 668, 122 So. 5; State ex rel. Claire v. Coleman, 129 Fla. 880, 177 So. 288; Martin v. State, 123 Fla. 143, 166 So. 467; State ex rel. Cacciatore v. Drumbright, 116 Fla. 496, 156 So. 721, 97 A.L.R. 154.

We have carefully examined count one of the information to which the defendant entered a plea of guilty on arraignment in the Criminal Court of Record of Dade County, Florida, and upon which the sentence of conviction is based and called into question. We think there is a substantial compliance with the material provisions of Section 4 of Chapter 18015, Laws of Florida, Acts of 1937, and the count here is not subject to the criticism directed against it. We think the count charges a crime within the meaning of this section.

It is next contended that Section 4 of Chapter 18015, supra, is unconstitutional and void under Section 16 of Article 3 of the Constitution of Florida in that the title of the act is not broad enough to include Section 4. This Court in the case of Cooper v. Robbins, Fla., 186 So. 800, when considering a similar objection to Section 5 of the same Act, held that the same was not subject to the criticism made. We have observed in the brief of counsel for defendant in error the distinction drawn between the case at bar and our ruling in Cooper v. Robbins, supra. We are unable to follow the reasoning offered for the distinction.

It is also contended that Section 4, supra, is unconstitutional and count one of the information is fatally defective because it is not charged that the defendant 'knowingly' kept in his possession beverage containing more than one per cent of alcohol. The statute supra, makes it unlawful to have in his possession within the State of Florida any beverage containing more than one per cent of alcohol by weight on which a federal excise tax is required to be paid, unless such federal excise tax has been paid as to such beverage. It is impossible to construe and give this statute its usual and ordinary meaning and at the same time read into it that a person must 'knowingly' possess this beverage before it becomes a crime. This point has been settled adversely to the contention of counsel for defendant in error in Ellison v. State, 100 Fla. 736, 129 So. 887; State v. Hendrickson, 67 Utah 15, 245 P. 375, 57 A.L.R. 786, and annotations on page 792.

In the case of Ellison v. State, supra, plaintiff in error was charged with having entered into a bigamous marriage. When the case was being tried in the lower court the defendant sought to introduce evidence to establish the fact that his wife told him in the Summer of 1928 that she had secured a divorce and that the plaintiff in error in good faith believed that her statement was true when he entered into this bigamous marriage. This Court held that an honest belief, reasonably entertained that a valid divorce had been granted will not constitute a defense to a prosecution for bigamy. See 7 C.J. 1165; 3 R.C.L. 802.

It is within the power of the Legislature to declare an act a crime regardless of the intent or knowledge of the...