Foxworth v. Law

• Decision Date: 08 May 1919
• Citation: 82 So. 55,77 Fla. 596
• Parties: FOXWORTH et al. v. LAW, Sheriff.
• Court: Florida Supreme Court

82 So. 55

77 Fla. 596

FOXWORTH et al. v. LAW, Sheriff.

Florida Supreme Court

May 8, 1919

Error to Circuit Court, Hernando County; W. S. Bullock, Judge.

Habeas corpus by W. H. Foxworth and others against W. E. Law, as Sheriff.Petitioners remanded, and they bring error.Reversed.

Syllabus by the Court

SYLLABUS

Where a warrant under which a petitioner is held in custody does not allege an offense under a statute, a discharge from custody may be ordered in habeas corpus proceedings without considering the constitutionality of the statute.

A charge that the defendant'did unlawfully transport over a public highway in' a dry county intoxicating liquors in violation of a statute does not allege an offense under the statute which makes it 'unlawful for any common or other carrier to transport any intoxicating liquors over * * * highways * * * of this state into any county,' etc.Non constat the defendant was transporting the liquors through and not into, the dry county.It was not alleged that the defendant was transporting the liquor as a common or other carrier.

COUNSELGeorge C. Martin, of Brooksville, for plaintiffs in error.

Van C Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen for defendant in error.

OPINION

WHITFIELD J.

The plaintiffs in error having been taken into custody by the sheriff upon warrants charging that they'did unlawfully transport over a public highway in Hernando county, a dry county, intoxicating liquors, wines, or beer in quantities greater than one quart,' contrary to the provisions of chapter 7733, Acts of 1918, Special Session, a writ of habeas corpus was issued by a justice of this court returnable before the circuit court, to determine the legality of the detention under the warrant.Upon being remanded, the petitioners were allowed and took writ of error.

Chapter 7733, as amended bychapter 7734, is as follows:

'An act regulating the transportation of intoxicating liquors into counties or precincts of this state where the sale of intoxicating liquors are prohibited and providing rules of evidence and a penalty for violations of the act.

'Whereas, by section 5 of chapter 162, Acts of Congress approved March 3, 1917, it is provided that 'whoever shall order, purchase or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal and mechanical purposes, into any state or territory the laws of which state or territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes shall be punished,' etc.; and whereas, the Constitution and statutes of this state prohibit the sale and manufacture of intoxicating liquors, wines or beer in all the counties of this state except Hillsborough, Monroe, Pinellas and Escambia; and, therefore,

'Be it enacted by the Legislature of the state of Florida:

'Section 1.That from and after the passage and approval of this act it shall be unlawful for any person, persons, firm or corporation to order, purchase or cause any intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal and mechanical purposes, into any county or precinct of this state where the sale of intoxicating liquors are prohibited under the Constitution and statutes of this state.

'Sec. 2.That it shall be unlawful for any person, persons, firm or corporation to order, purchase or cause intoxicating liquors, wines or beer for beverage purposes to be transported from any point in the state by any common or other carrier into any county or precinct of this state wherein the sale of intoxicating liquors are prohibted by the Constitution and statutes of this state, except as provided in this act.

'Sec. 3.That it shall be unlawful for any common or other carrier to transport any intoxicating liquors over railways, highways or waters of this state into any county or precinct in this state where the sale of intoxicating liquors, wine or beer are prohibited for any purpose except as provided for by this act.

'Sec. 4.That nothing in this act shall make it unlawful for any person to order, purchase, transport or cause intoxicating liquors for personal use as a beverage not exceeding one quart during any period of thirty consecutive days to be ordered, purchased or transported in interstate commerce or intrastate commerce or otherwise by any common or other carriers from any point without or within the state to any point within the state.

'Sec. 5.Upon the trial of any person under this act it shall be prima facie evidence that intoxicating liquors were ordered, procured, transported or received in violation of this act if any way bill or records of shipments, or amount found in the possession of any person, shows that he received or transported by and through the means stated in this act any amount over and above one quart of intoxicating liquors for beverage purposes within any thirty consecutive days; and the sheriffs, deputies and constables shall have authority to arrest without warrant and seize all liquors found in this state where found in violation of this act and the same shall be disposed of as provided by the laws of this state.

'Sec. 6.That any person, association of persons, or corporation, or any officer, agent or employé thereof, violating any of the provisions of sections one or two or three of this act, shall on conviction be deemed guilty of a misdemeanor and be punished as is provided by general law.

'Sec. 7.That if any section or part of section of this act shall be held to be unconstitutional or invalid that fact shall not invalidate any other section or portion of section of this act, but the valid portions shall be enforced without reference to the part so held invalid.

'Sec. 8.That this act shall become effective five days after its passage and approval by the Governor.

'Approved December 4, 1918.'

In the order remanding the petitioners the circuit judge states:

That 'for a return the sheriff attaches the original warrant and the affidavit upon...