Fine v. State
| Decision Date | 09 July 1943 |
| Citation | 14 So.2d 408,153 Fla. 297 |
| Parties | FINE v. STATE. |
| Court | Florida Supreme Court |
Appeal from Criminal Court of Record, Dade County; Ben C. Willard, judge.
J. H Swink, of Miami, for appellant.
J. Tom Watson. Atty. Gen., Woodrow Melvin, Asst. Atty. Gen., and Robert R. Taylor, Co. Sol., and Glenn C. Mincer, Asst. Co. Sol., both of Miami, for appellee.
The defendant was convicted of the abominable and detestable crime against nature, denounced in Section 800.01, Florida Statutes 1941 F.S.A. § 800.01.
He contends that the judgment against him should be reversed because: (1) the information was defective, (2) the venue was not proven, (3) the evidence was insufficient.
It was charged by the State that the offense was committed 'during the summer months,' nineteen forty-two which appellant claims was so indefinite as to render the information invalid. No motion to quash was presented, but it appears from the record that the defendant requested a bill of particulars that the date might be fixed more definitely. Although no order was entered, at the conclusion of a colloquy among the judge and counsel the county solicitor stated 'that the date of the alleged offense is September 1, 1942, or prior thereto.' After the defendant was found guilty his attorney made an oral motion in arrest of judgment adopting as grounds of it those appearing in the one for a bill of particulars. In the motion for new trial no specific mention was made of the date, but one ground urged was the ruling on the effort to arrest judgment.
We have given in some detail the procedure with reference to the infirmity claimed in the information because of the form of appellant's first question which is, in substance: Should the motion to arrest have been granted, because of the indefiniteness of the time averred, "during the summer months' and more particularly, 'September 1, 1942 or prior thereto?" Thus, he incorporated the quotation--we have italicized it--from the bill of particulars, although it was no part of the information. Kittleson v. State, Fla. 9 So.2d 807. The answer may be found in the provisions of the Criminal Procedure Act, Chapter 19554, Laws of Florida, Acts of 1939. There, Section 239, Section 920.02, Florida Statutes 1941, F.S.A. § 920.02, motions in arrest of judgment were abolished and matter properly presentable by them was authorized to be included in motions for new trial. More important, by Section 142, Section 909.06, Florida Statutes 1941, F.S.A. § 909.06, a defendant who does not move to quash is considered to have waived all defects which are grounds for such a motion. Taking appellant's first question literally the answer to it would be unfavorable to his contention because it challenged the propriety of a motion in arrest, no longer available. Considering its substance instead of its form we must still rule against him, for having pleaded to the information he cannot now raise the objection to the date appearing in the information. Smith v. State, 147 Fla. 191, 3 So.2d 516. In reaching this conclusion we have considered that, although the exact day of the alleged offense was not given, the summer months of nineteen forty-two were June, July and August, according to popular understanding; were embraced within the period beginning with the summer solstice, June twenty-first, and ending with the autumnal equinox, September twenty-second, according to astronomical calculation. The earliest date under either definition was within two years of the filing of the information, in October of the same year.
The second question is not well founded. It is based on failure of the testimony expressly to show that the act charged was committed in Dade County, Florida. It is true that venue was not established by direct mention of the county and state but there were such references to locality as would lead to the reasonable conclusion that the transactions charged to have been criminal transpired in the place alleged in the information.
A more serious problem is presented by the third question assailing the...
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