Frese v. State
| Citation | 23 Fla. 267,2 So. 1 |
| Parties | FRESE v. STATE. |
| Decision Date | 04 April 1887 |
| Court | Florida Supreme Court |
Error to circuit court, Hernando county.
Syllabus by the Court
The sale of spirituous liquor without having a license as a dealer in spirituous liquors is a misdemeanor, and a prosecution of the offense may be instituted 'within two years next after' the commission of the offense, under the act of July 10, 1832, ( )
A single sale of a spirituous liquor without having a license is a violation of the provisions of the revenue act of 1883 (chapter 3413.)
A statute which enacts that an offense shall be punished by fine, is not rendered unconstitutional by the fact that it does not prescribe the maximum amount of fine which may be imposed.
The provision of section 12 of the revenue act of 1883, to the effect that any person convicted of carrying on a business for which a license is required, without having first obtained such a license, shall be punished by a fine of not less than double the amount required for the license, does not violate the declaration of right that 'excessive fines shall not be imposed.' The minimum fine prescribed for selling spirituous liquors without license is not excessive, nor is the omission to prescribe a maximum fine an imposition by the legislature of an excessive fine.
Courts take judicial notice of the meaning of the word 'whisky,' and it is not necessary to prove to them that it is a spirituous liquor.
COUNSEL Barron Phillips, for plaintiff in error.
The Attorney General, for defendant in error.
1. The plaintiff in error was convicted at the fall term, 1885, of the Hernando circuit court, of carrying on the business of a dealer in spirituous liquors without having obtained a state license. It is contended that the offense is barred by the statute of limitations, as it was not committed within one year before the filing of the information upon which the trial was had. The seventy-eighth section of the act of July 10, 1832, ( ,) 'An act relating to crimes and misdemeanors,' provides that all offenses not punishable with death shall be prosecuted within two years next after the same shall have been committed. It is clear that there is no bar of the prosecution under this act; but counsel for plaintiff in error urges that the case is controlled by section 18 of the act of November 19, 1828, which, as it is set forth in the Digests of Thompson and McClellan, provides that 'all actions, suits, and presentments upon penal acts of the general assembly shall be sued and presented within one year next after the offense shall have been committed.' This section, as originally enacted and published, (page 123 Territorial Acts 1828,) provided 'that all prosecutions (felonies excepted,) all actions, suits, presentments upon penal acts of the governor and legislative council, and those of the United States, shall be sued and prosecuted within one year next after the offenses committed.' The omission of the first words italicized was made by Judge Thompson, as he says, because, as a limitation upon criminal prosecutions, they were in conflict with the above section of the act of 1832. See note d to page 489 of Thompson's Digest. The case at bar is a criminal prosecution not punishable with death, and the purpose and effect of the act of 1832 was a repeal of the act of 1828 as to all such prosecutions, and to extend the period within which they could be instituted to two years next after the commission of the offenses. The act passed November 14, 1828, repealed expressly by the seventy-ninth section of the act of 1832, was a statute of upward of a hundred sections, defining and punishing crimes and misdemeanors; and that passed November 17, 1829, expressly repealed by the seventy-ninth section, was an amendment to the act of November 14, 1828. The repeal of neither of these acts, so expressly repealed, would have been effected by the enactment of the seventy-eighth section of the act of 1832. The statutory bar of the prosecution before us is two years, and not one year.
2. Another assignment of error is that the circuit judge erred in charging the jury that one sale was sufficient to constitute a person a dealer in spirituous liquors under our statute. This was held, and we think correctly so, in Jordan v. State, decided last year by this court. In the case before us there were two purchases of one quart of whisky at defendant's store at different times; the first quart being purchased directly from the defendant personally, and two dollars being the price paid for it. There was no error that we perceive in the proposition that selling through an agent by one without a liquor license is a violation of the statute; but, even if there is, no advantage can be taken of it, since the other proposition of the charge (that proof of one sale is sufficient to convict) was correct, and the exception to the whole charge was general.
3. It is also contended that the twelfth section of the revenue act of 1883, which makes a violation of the statute, in so far as it requires a liquor or other license, a misdemeanor, and declares that the punishment shall be a 'fine of not less than double the amount required for such license,' is unconstitutional, in that it does not fix a maximum fine. The constitutional provision claimed to be violated is that section of the bill of rights which declares that excessive fines shall not be imposed. Section 6 of the Constitution of 1868; section 8 of the present Constitution. The same provision against excessive fines is to be found in the English bill of rights,...
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