Dansey v. State

• Decision Date: 21 July 1887
• Citation: 2 So. 692,23 Fla. 316
• Parties: DANSEY v. STATE.
• Court: Florida Supreme Court

2 So. 692

23 Fla. 316

DANSEY v. STATE.

Florida Supreme Court

July 21, 1887

Writ of error to the circuit court, Alachua county.

Syllabus by the Court

SYLLABUS

The prisoner stated in his affidavit for a continuance that the subpoena issued the preceding day for witnesses who were residents of the county had not been served, and that he was informed that they were temporarily absent from the county at work on a railroad in south Florida. The sheriff's return of the subpoena is that it was served on the witnesses, on the day of its issue. Held, that no error appears to have been committed in refusing the motion.

The sale of spirituous liquors, or carrying on of the business of a liquor dealer without a license, is not a continuing offense. A single sale is a violation of the statute, and a repetition of sales or continuing in the business of selling is not an essential element of the offense prohibited.

The rule followed in Brevaldo v. State, 21 Fla. 789 that if an offense is charged as having been done on a certain day, and on divers other days, etc., there cannot be a conviction of any substantive offense committed prior to the time alleged, applies only to continuing offenses, and perhaps to all charges of illicit intercourse within a certain period.

Where an indictment charges the sale of spirituous liquors, or carrying on of the business of a dealer therein, without having a license, to have been on a certain stated day, and on divers other days and times between such day and the finding of the indictment, all the allegation of time after that of the particular day may be rejected as surplusage, and the state is not restricted to proof of the offense having been committed on the stated day, or within the stated period.

It is not necessary to allege in an indictment for selling spirituous liquors without a license, or in one for carrying on the business of a dealer in spirituous liquors without a license, either the name of the person to whom the liquor was sold, or the particular liquor sold, nor that the defendant had a place of business, nor that his place of business was in an election district of a county.

COUNSEL

Taylor & Sanehez, for plaintiff in error.

The Attorney General, for defendant in error.

OPINION

RANEY J.

The plaintiff in error was indicted and convicted for selling spirituous liquors without having procured a license.

1. The first error assigned is the refusal of a continuance of the cause to a succeeding term. The application for the continuance was made on the fifteenth day of May, at the spring term, 1886, of the Alachua circuit court, and denied the same day. The indictment was found on the ninth day of December of the preceding year, at the fall term.

The affidavit of the prisoner upon which the motion for continuance was based states that R. A. Coleman, A. Carn, and H. Washington are material witnesses; that they have not been served with subpoena, for the reason that the indictment was found at the last term of the court, and he has been and is utterly unable to pay the costs for having his witnesses served with subpoena, and he could not get an order for subpoenas until this term, but has at such term applied for and obtained the order, and the subpoenas are now in the hands of the sheriff; that the witnesses are absent without his consent; that they reside in Alachua county but, he is informed, are temporarily absent from the county, at work on the railroad in south Florida; that he expects to prove by them that 'they were present with this defendant all day on the first day of April, 1885, and knew of his whereabouts and business from that day to the time of filing the bill, and that each of them will swear that he did not sell or buy liquors at that time and in the manner stated in the indictment.' It has other usual statements, which need not be mentioned.

The subpoena spoken of was issued on the day preceding the application for the continuance, and was returned as having been executed on the day of its issue, by serving a copy on each of the named witnesses.

In face of the statement of the affidavit that the prisoner is informed that the witnesses are temporarily absent from Alachua county, and have not been served with subpoena, we have the return of the sheriff that they had been served. The service appears to have been made the day before the affidavit was sworn to. The refusal of the continuance may have been for the reason that they had been served, and were not absent, and we think the sheriff's return of the fact of such service is sufficient to support the ruling of the judge, as against an affidavit of the prisoner, which, as to the alleged absence, is made simply upon information. What the source of the information was we are not informed. There are, moreover, no circumstances stated to justify us in holding that the witnesses had absented themselves after service was made on them, (as in Blige v. State, 20 Fla. 742,) or if so, that they could not be had at the pending term by attachment.

2. The testimony on the trial was, in substance, as follows: Frank Brown testified that he knew the prisoner; knew he sold whisky because he (witness) got some of it. He bought a drink and a half-pint flask, and prisoner sold some at the same time to two other parties, (whom witness names.) This was 'about in April, 1885, at Archer, in Alachua county, Florida,' has never seen him sell any liquor later than April. Prisoner had this whisky in a fish-house in Archer. Mr. Haines kept the fish-house, but was away at Cedar Keys at that time. Prisoner had the jug under the counter, and took it out, and poured the whisky out of it; had a glass. It was Haines' place of business, but prisoner was stopping there a little while. The place was not fixed up for the business.

Sam Stephens testified that he bought a half-pint flask of whisky from prisoner, 'about April, 1885, and paid him a quarter for it,' at the place mentioned by Brown.

Another witness testified that he purchased whisky of defendant about Christmas, 1884, and again about April, 1885, out of the jug at the fish-house.

The witnesses admitted having had 'words,' 'trouble, or difficulty' with the prisoner about politics. One of them admitted having shot into the home of defendant's mother, and having run him, not as having anything to do with this case, but because the prisoner thinks himself better than others of his race; and for this he was fined, and two weeks after he made affidavit that defendant was doing business without a license.

It was admitted that defendant had no license for the years 1884 and 1885, and that the magistrate, before whom the witness last spoken of made the affidavit, would testify that such affidavit was made about April 1st, and only a few days after such witness was fined; and that such affidavit was the commencement and basis of this prosecution.

The offense is charged to have been committed on the first day of April, 1885, and divers other days and times between such day and the day of the filing of the indictment.

The prisoner's counsel requested the judge to charge the jury: (1) That they could not convict the prisoner for any sale of liquor prior to April 1, 1885, but it must be proved to their satisfaction that the sale was made some time since the beginning of such day. (2) That, to convict, they must find that he carried on the business between the times stated in the indictment, and evidence of selling at any other time is not to be considered; that time is of the essence of the offense, under the indictment in this case. (3) That to constitute a dealer in liquors, under our statute, the evidence must show that the defendant was openly carrying on the business of a dealer in liquors generally; that he kept them exposed for sale; that a mere single sale, in secret, will not do.

The judge refused to give these instructions, and charged the jury that, if it was proved that the defendant sold liquor in Alachua county, Florida, at any time within two years before the finding of the indictment, without license, they could convict the prisoner regardless of the time laid in the indictment.

The instructions given, as well as the refusal to give the instructions asked, were excepted to; and this action of the judge, and his permitting, against objection, the introduction of testimony as to the sale of liquor prior to April 1, 1885, were, with the assertion that the verdict is contrary to the evidence, urged as grounds for a new trial, and are, with the denial of such motion, assigned as error here.

It has been held in two cases (Jordan v. State, 22 Fla 528, and Frese v. State, 23 Fla. ----, 2 South. Rep. 1) by this court that a single sale of spirituous liquors, by one not having a liquor license, is a violation of the revenue act of 1883. See, also, State v. Cassety, 1 Rich. (S. C.) 90; State v....