Ex Parte Francis
Decision Date | 13 August 1918 |
Citation | 76 Fla. 304,79 So. 753 |
Parties | Ex parte FRANCIS. |
Court | Florida Supreme Court |
Rehearing Denied Oct. 11, 1918.
Error to Circuit Court, Dade County; H. Pierre Branning, Judge.
Application of James Francis for writ of habeas corpus. Writ denied, and relator brings error. Relator discharged.
Syllabus by the Court
An information charging in six separate counts that the defendant:
(1) Did unlawfully transport from a county in this state where the sale of intoxicating liquors is lawful, into a county where such sales were prohibited by an election held to decide such question of prohibition, two quarts of whisky and four quarts of wine intended for the personal use of the defendant.
(2) The second count is a duplicate of the first count, except that it omits the allegation that the liquors transported were intended for the personal use of the defendant.
(3) That the defendant in said county where the sale of such intoxicating liquors had been prohibited by an election held to establish prohibition therein did possess two quarts of whisky and four quarts of wine, that were received by him from a carrier within a 30-day period; the said liquors so possessed being then and there intended for the defendant's personal use.
(4) The fourth count is a duplicate of the third count, except that it omits the allegation that the liquors so possessed were intended for the personal use of the defendant.
(5) That the defendant did personally transport into said prohibition territory for his own personal use two quarts of whisky and four quarts of wine.
(6) The sixth count is a duplicate of the fifth count, except that the allegation that the liquors transported were for the defendant's own use is omitted.
Held to charge no offense in any count thereof under any valid law of this state. Held, further that chapter 7284, Laws approved May 1, 1917, undertaking to penalize the acts charged against the defendant in said information, is unconstitutional and void.
Intoxicating liquor is 'property that is the subject of private ownership' as such, and the Legislature has no authority to prohibit its ownership, possession, transportation, or personal use by the citizen either in a prohibition county or a county where prohibition is not established, unless in either of said counties it is shown that its possession is intended for the illicit sale thereof.
COUNSEL Atkinson & Burdine, Bart A. Riley, and Taylor & Taylor, all of Miami, for plaintiff in error.
Van C Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen for the State.
James Francis, who is referred to herein as the relator, was arrested and deprived of his liberty under a capias issued by the criminal court of record of Dade county from an information filed by the county solicitor, which information charges in six separate counts as follows:
Thereupon the relator sued out a writ of habeas corpus from the circuit court; the petition for the writ, omitting its formal parts, being as follows:
'(5) That the said imprisonment, detention, confinement, deprivation and restraint are illegal, and that the illegality thereof consists in this, to wit:
'(a) That the information filed against the petitioner herein is based upon an act passed at the 1917 session of the Florida Legislature, chapter 7284, Laws of 1917, the title to which begins as follows, to wit:
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State v. Moore
... ... S.E. 283, 6 L. R. A. 847; Commonwealth v. Campbell, ... 133 Ky. 50, 117 S.W. 383, 24 L. R. A., N. S., 172; State ... ex rel. Francis v. Moran, 76 Fla. 304, 2 A. L. R. 1068, ... 79 So. 753; Joyce on Intoxicating Liquors, sec. 79; ... Gherna v. State, 16 Ariz. 344, 146 P. 494; x parte ... Brown, 38 Tex. Cr. 295, 42 S.W. 554; Morris v ... Wrightson, 56 N.J.L. 201, 28 A. 56, 22 L. R. A. 548; ... Matter of N.Y. Elevated R. R ... ...
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In Re Seven Barrels of Wine, in Re
... ... intoxicating liquors and beverages were property that could ... be lawfully acquired, possessed, and protected in this state ... See Ex parte Francis, 79 So. 753, 2 A. L. R. 1068 ... Under ... the agreed statement of facts it is assumed here that the 7 ... barrels of wine are ... ...
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Neisel v. Moran
...to article 19 was adopted at the polls, and would inevitably take effect at the time stated therein. The decision in Ex parte Francis, 76 Fla. 304, 79 So. 753, 2 L. R. 1068, was that certain provisions of chapter 7284 then sought to be enforced were in conflict with original article 19; but......
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...and could not, therefore, afford justification for the exercise of the police power. To this effect: Re Luera, 28 Cal.App. 185; Ex parte Francis, 76 Fla. 304; v. Campbell, 133 Ky. 50; Ex parte Wilson, 6 Okla.Crim. 451; State v. Gilman, 33 W.Va. 146; Town of Cortland v. Larson, 273 Ill. 602.......