Goode v. State

• Decision Date: 24 October 1905
• Citation: 50 Fla. 45,39 So. 461
• Parties: GOODE v. STATE.
• Court: Florida Supreme Court

39 So. 461

50 Fla. 45

GOODE v. STATE.

Florida Supreme Court, Division A.

October 24, 1905

Error to Circuit Court, Walton County; Charles B. Parkhill, Judge.

Lowe Goode was convicted of violation of the local option law, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Among other things, the term 'ex post facto law' includes every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.

It is the general rule, in construing statutes, that construction is favored which gives effect to every clause and every part of the statute, thus producing a consistent and harmonious whole, and a construction which would leave without effect any part of the language used should be rejected, if an interpretation can be found which will give it effect; yet however important it is to give significance and effect to every word, clause and sentence in a statute, less regard is to be paid to the words used than the policy which dictates the act.

Section 3, p. 58, c. 4930, of the Laws of 1901, which provides that 'in the trial of violations of sections 1 and 2 of this act, it shall not be necessary for the prosecution to prove that the defendant had any interest in the money received by a defendant for whisky or liquor delivered by him, but proof of the delivery of liquor by a defendant and the receipt of money therefor by him shall be sufficient prima facie evidence of the ownership of said liquor by a defendant,' has the effect of modifying the rule of evidence enunciated in Anderson v. State. 32 Fla. 242, 13 So. 435, by making proof of the delivery of whisky to a person by a defendant, and the receipt of money therefor by him, prima facie evidence of the ownership of said whisky by the defendant, and thereby casting upon him the burden of rebutting the legal presumption.

In a prosecution for violation of the local option law, the crime may be proved by showing a systematic course of trade by the defendant, as well as by showing a single act.

Evidence of circumstances tending to connect the accused with the commission of the allegal crime, even though inconclusive, is properly admitted; and this is especially true in a prosecution for violation of the local option law, when such evidence tends to throw light upon the real transaction. The admission of such evidence rests largely within the judicial discretion of the trial judge, and an appellate court should not disturb his ruling thereon, unless an abuse of the judicial discretion is clearly made to appear.

Evidence examined, and found sufficient to support the verdict.

COUNSEL Daniel Campbell & Son, for plaintiff in error.

W. H Ellis, Atty. Gen., and J. W. Kehoe, State Atty., for the State.

OPINION

SHACKLEFORD C.J.

At the fall term, 1903, of the circuit court for Walton county, the plaintiff in error, Lowe Goode (hereinafter referred to as the defendant), was indicted for carrying on the business of a liquor dealer in violation of the local option law, was tried and convicted at the fall term of said court for the year 1904, and seeks relief here by writ of error returnable to the present term of this court.

Three errors are assigned; the first and third being based upon the admission of the testimony of C. A. Stanley, a witness for the state, as to the alleged sales of liquor made by the defendant more than two years prior to the finding of the indictment, and the second being based upon the denial of the defendant's motion for a new trial. It seems advisable to discuss these three assignments together.

At the time the crime is alleged to have been committed, chapter 4930, p. 58, of the Laws of 1901, was in full force and effect, and the indictment was based thereon. Section 4 of said law reads as follows:

'Sec 4. In the trial of violations of sections 1 and 2 of this act, proof of a sale of a single quantity of liquor by a defendant, if proved by the testimony of two witnesses, shall be deemed sufficient to convict, and the judge presiding at the trial of the case shall so charge the jury.'

This section was expressly repealed by chapter 5187, p. 131, of the Laws of 1903, which became a law prior to the finding of the indictment against the defendant, and yet section 4, p. 59, of chapter 4930 of the Laws of 1901, was in force and effect, so far as the defendant was concerned, and he was entitled to whatever benefit, privilege, or right was granted thereby. To hold otherwise would make chapter 5187, p. 131, of the Laws of 1903, ex post facto, and therefore violative of section 17 of the Declaration of Rights in the Constitution of 1885, as well as of clause 3 of section 8 of article 1 of the federal Constitution. In the leading case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648, it was held, among other things, that the term 'ex post facto law' includes 'every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.' Hopt v. People of Utah, 110 U.S. 574, 28 L.Ed. 262, 4 S.Ct. 202; Hart v. State, 40 Ala. 32, 88 Am. Dec. 752; 3 Words & Phrases Judicially Construed, 2528, where numerous authorities are cited.

Turning now to the testimony, as the same is set forth in the bill of exceptions, we find that the state produced three witnesses, N. D. McLean, C. A. Stanley, and William Anderson, and that the defendant offered no testimony.

It was admitted by the defendant in open court that the county of Walton was a local option county, and that the local option provisions prohibiting the sale of liquor therein were in force at the time of the trial, and had continuously been so for a period of more than two years prior to the finding of the indictment.

N. D. McLean testified as follows: 'My name is Neal D. McLean. I reside at Freeport, Fla., in Walton county. I am acquainted with the defendant, Lowe Goode. That is him (pointing the defendant out in court). I got a bottle of whisky from the defendant, Lowe Goode, along last year some time. I got the whisky from Goode at his boat, in Freeport, Fla., Walton county, about a year ago, and I paid him half a dollar for it. I went to Lowe Goode, and told him I wanted some whisky. He said, 'All right.' He went down in the hold of his boat, and brought up a bottle, and handed it to me. I handed him a dollar. He took the money and made the change, laying a half a dollar on the rail of the boat. I took the whisky and the half dollar and went back up town. Lowe Goode took the dollar and kept it. Mr. Crawford had said to me that he would like to have some whisky. I told him if he would furnish the money I would get the whisky. He gave me the dollar. I went down there to Goode's boat, bought and paid for the whisky as stated, and went back and gave Mr. Crawford the half dollar, and he and I drank the whisky. I have got whisky from Goode myself at other times; but I always gave him orders for it, except the time before stated. I would give him a verbal order to bring me whisky whenever he came. Sometimes I gave hime the money when I gave the order, and sometimes I gave him the money when he brought the whisky to me, and sometimes I took the whisky and paid Goode for it after I had drank it up. I would send these verbal orders to Pensacola, would not tell him any particular person to get the whisky from, but only told him to bring me some whisky from Pensacola when he came back. Goode was running a sailboat between Freeport and Pensacola, and usually made the trip every week.'

Cross-examination:

'I don't know whether Mr. Crawford had ordered any whisky from Goode or not. He didn't tell me whether he had ordered it or not, but simply said he would like to have some, and I told him if he would furnish the money that I would get the whisky. He did furnish the money, and I got the whisky from Goode, as I have just stated.'

C. A Stanley testified as follows: 'My name is C. A. Stanley. I reside at Freeport, Fla., Walton county. I know the defendant, Lowe Goode. Some time ago, some two or three years ago, I sent for a bottle of whisky by Goode, and he brought it to me from Pensacola. (But the defendant by his attorney then and there objected to said testimony, and moved to strike the same, because it did not show that the whisky had been brought to him within two years prior to the indictment; but the said judge did then and there deliver his opinion, and decide that said objection should be overruled, and directed the jury that they could not find the defendant guilty under the present indictment upon the proof of selling liquor, if such sale was not shown to have been made within two years before the finding of the indictment upon which the defendant was on trial, and that any sale more than two years before such date, by Goode, could only be considered by them as throwing light upon the transaction, and not as a substantive offense, to which decision, overruling the objection of the defendant, the defendant then and there excepted.) The whisky the said Goode brought me from Pensacola I had ordered for sickness, and it was not as good whisky as I had ordered or as I had wished, and I took the whisky back to Goode and told him that I did not want it, because it was not good whisky. I had given Goode money to buy the whisky at the time I gave him the order. When I carried the whisky back to him to be returned, he stated to me that he had a bottle of better whisky on board that he had bought for another party, but that the other party was not there and had not called for the whisky, and that he would give me the other bottle of whisky in exchange for the...