D'alessandro v. State

• Decision Date: 03 October 1934
• Citation: 116 Fla. 749,156 So. 702
• Court: Florida Supreme Court
• Parties: D'ALESSANDRO v. STATE.

156 So. 702

116 Fla. 749

D'ALESSANDRO v. STATE.

Florida Supreme Court

October 3, 1934

En Banc.

Error to Circuit Court, Lee County; W. T. Harrison, Judge.

Angelo D'Alessandro was convicted of perjury, and he brings error.

Reversed.

See also, 153 So. 95.

BROWN J., dissenting.

COUNSEL W. D. Bell, of Arcadia, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

Kin this case plaintiff in error was convicted of perjury on an indictment; the charging part of which was as follows:

'That Angelo D'Alesandro, on the 5th day of August, 1933, at and in the County of Lee, being duly sworn to speak the truth, the whole truth and nothing but the truth, by John R. West, Justice of the Peace of the Third Justice of District of Lee County, Florida, in the Justice of the Peace Court, Third District, Lee County, in the preliminary trial of the State of Florida versus Angelo D'Allensandro, charged with the crime of having in his possession, offering to sell and selling to one Arch Williams lottery tickets, to-wit, tickets commonly known as Bolita tickets, in the Third Justice District of Lee County on July 28, 1933; the said John R. West having competent authority to administer the oath to him the said Angelo D'Allesandro as aforesaid, and the said Angelo D'Allensandro being a witness for the defendant in the above styled case, and the said John R. West as such Justice of the Peace having competent jurisdiction to hold the preliminary trial aforementioned; and the said Angelo D'Allensandro, as such witness as aforesaid, did then and there willfully and corruptly swear falsely in regard to a material matter in said cause; that is to say, the said Angelo D'Allesandro did then and there willfully and corruptly testify and say in substance and effect that he the said Angelo D'Allesandro did not have in his possession, offer to sell or sell any lottery tickets to Arch Williams or to anybody on July 28, 1933. Whereas, in truth and in fact, as the said Angelo D'Allesandro then and there well knew, he the said Angelo D'Allesandro did on July 28, 1933, in the Third Justice of the Peace District, in Lee County, Florida, have in his possession, offer to sell and sell to one Arch Williams lottery tickets, to-wit, tickets commonly known as Bolita tickets; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida.'

There are a number of assignments of error presented, but it is only necessary for us so deal with one which attacks the sufficiency of the indictment.

The indictment was subjected to a motion to quash, which should have been granted.

The indictment is insufficient in that it fails to show upon its face that there was any justiciable issue being tried before the justice of the peace court at the time the false oath is alleged to have been deposed by the accused. The allegations of the indictment are insufficient to show that at the time of the alleged false deposition the preliminary trial alleged to have been in progress involved the alleged violation of any law of the state of Florida. See D'Alessandro v State, decided February 27, 1934, reported (Fla.) 153 So....