Hart v. State

• Decision Date: 28 February 1925
• Citation: 89 Fla. 202,103 So. 633
• Court: Florida Supreme Court
• Parties: HART v. STATE.

103 So. 633

89 Fla. 202

HART v. STATE.

Florida Supreme Court, Division A.

February 28, 1925

Error to Circuit Court, Pinellas County; M. A. McMullen, Judge.

G. L Hart was convicted of unlawfully possessing intoxicating liquor, and of having been proviously convicted for transporting intoxicating liquor, and he brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Only certain judges, or justices of peace having jurisdiction within district in which place, vehicle or thing to be seached may be, may issue search warrants. No person has power to issue a search warrant, except a 'judge including the judge of any circuit court of this state or any court of record, or criminal court of record, or county judge, or justice of the peace having jurisdiction within the district where the place, vehicle, or thing to be searched may be.'

Statutes authorizing search of domicile are to be strictly construed. Statutes authorizing the search of a domicile are to be strictly construed, and no presumptions of regularity are to be invoked in aid of the process under which a proper officer obeying its commands undertakes to justify it.

Indictment held insufficient to charge second offense against prohibition laws. An indictment charging that the defendant 'did then and there unlawfully have in his possession intoxicating liquor, to wit, one quart of Scotch whisky, one pint Scotch whisky, one quart of dry gin, and one quart of Scotch whisky, broken, and the said G. L. Hart, whose Christian name is to the grand jurors unknown, had previously, on to wit, the 14th day of March, A. D. 1921 been convicted in the county court of Pinellas county, Fla of a violation of the intoxicating liquor law, to wit: Transporting intoxicating liquor,' fails to charge a second offense of the prohibition laws of Florida.

COUNSEL

Thomas Palmer, of Tampa, and W. F. Way, of St. Petersburg, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

BROWNE J.

The plaintiff in error, G. L. Hart, was convicted under an indictment charging him with unlawfully having in his possession 'intoxicating liquor, to wit, one quart of Scotch whisky, broken, and the said G. L. Hart, whose Christian name is to the grand jurors unknown, had previously, on to wit, the 14th day of March, A. D. 1921, been convicted in the county court of Pinellas county, Fla., of a violation of the intoxicating liquor law, to wit, transporting intoxicating liquor.'

The jury found 'the defendant guilty as charged.'

The record discloses that, under the guise of the authority of a search warrant, one Geo. M. Hazzard, calling himself 'city detective,' accompanied by two police officers of the city of St. Petersburg, against the objection and protest of Mrs. Hart, the wife of the plaintiff in error, entered their home and proceeded to search it.

Mrs. Hart went into the bathroom and slammed the door. Hazzard says he heard bottles breaking on the inside of the bathroom, and he 'rushed to the door, threw my shoulder to the door, and when I got inside Mrs. Hart and one or two little girls were there, and she had one bottle in her hand, and pulled another out from underneath the bathtub.'

There was a scuffle, in which Mrs. Hart struck Hazzard with a bottle, and he grabbed hold of her and her little girl, and held them until the two policeman, Bidaman and Goodwin, came upstairs. Officer Goodwin took the bottle out of Mrs. Hart's hand.

Officer Bidaman testified that he was downstairs making a search when he heard a 'loud commotion upstairs, crying and screaming.'

Bidaman made two returns to the so-called search warrant; in one, he swears that he found 'one bottle Scotch whisky, one part bottle Scotch whisky, one broken bottle Scotch whisky, taken from the residence of G. L. Hart.'

In the other he says:

'I served this warrant by searching the residence of G. L. Hart, at 208 W. Eleventh Avenue North, and securing from some the following: One quart Scotch whisky; one quart Scotch whisky broken; one quart dry gin; Hart not found.'

Deputy Sheriff Horton Belcher testified that he received 'a package supposed to contain whisky' from Hazzard; that he 'put it in a cell at the jail,' where it remained until the morning of the trial; that the package was wrapped up when he received it; that no one had access to the package except himself and Sheriff Lindsey, and that no trusty had access to it.

Police Goodwin testified they found in Hart's residence '1 quart of gin, 1 quart of Scotch whisky, 1 1/2 quarts of Scotch whisky, and a broken bottle.'

It appears from the testimony that these articles were wrapped and tied in a package. When the package was opened in court, the full bottle of Scotch whisky was missing.

When Goodwin was asked whether he knew if this was 'the identical stuff or not,' he replied:

'I know that gin is the same bottle, and I know the other bottle is the same bottle, but the full quart is gone.'

In order to lay the foundation for introducting in evidence the articles alleged to have been found in Hart's house, the police officers testified specifically to the fact that they wrapped the bottles and broken bottle up in a package and delivered it to the sheriff's office; the deputy sheriff admits receiving from Policeman Hazzard 'a package supposed to contain whisky,' and that the package brought into court looked like the identical package that was delivered to him; that it had been in a cell in the jail and brought from the jail to court. Yet, one full bottle of Scotch whisky was missing from the package.

Disappearnaces of liquor such as occurred in this case are not unusual incidents connected with the enforcement of prohibition laws, but the zeal of officers charged with this duty is regarded by many as sufficient excuse for such disappearances, and makes them mere trivialities.

Timely objections were made by the plaintiff in error to the introduction in evidence of the residue of the intoxicating liquors said to have been found in the residence of the plaintiff in error, and to the testimony of the police officers as to what occurred when they invaded Hart's home under an alleged search warrant; which objections were overruled and exceptions duly taken.

The alleged search warrant was issued by the municipal judge of the city of St. Petersburg, upon an affidavit that does not comply with chapter 9321, Acts of Legislature of 1923, providing for the issuance of search warrants. However, as the search warrant was issued by a person having no authority to do so, we need not discuss the insufficiency of the affidavit upon which it was issued.

Section 3 of chapter 9321, Acts of the Legislature of 1923, provides:

'A search warrant authorized by law may be issued by any judge, including the judge of any circuit court of this state or any court of record, or criminal court of record, or county judge or justice of the peace, having jurisdiction within the district where the place, vehicle or thing to be searched may be.'

Section 6186, Revised General Statutes 1920, which provides, 'Any committing magistrate may issue search warrants on application duly made by affidavit, but only on probable cause,' seems to be merged in chapter 9321, as all officials authorized to act as a 'committing magistrate,' are included among those enumerated in section 3 of chapter 9321.

No officer other than those enumerated in this section therefore has power to issue a search warrant, and any attempt to do so by any other person is a high-handed invasion of the sanctity of the home, and in violation of section 22 of the Declaration of Rights of the Constitution of Florida, adopted by the people for the security of 'their persons, houses, papers and effects.'

As was well expressed by Mr. Justice Terrell in a case decided in the January, 1924, term of this court:

'When searches and seizures are made pursuant to the command of a search warrant, both the search warrant and the prerequisite oath or affirmation required for it must conform strictly to the constitutional and statutory provisions authorizing their issue. This is true, because there is no process known to the law, the execution of which is more distressing to the citizen or that actuates such intense feeling of resentment on account of its humiliating and degrading consequences. As thus enunciated the law is in line with and is no doubt the child of our Anglo-Saxon spirit of liberty which holds every man's house or dwelling as his castle, and which declares that it must not be invaded or subjected to an uninvited search, except by a duly qualified officer, and then only in pursuance of a valid writ commanding it. White v. Wagar, 185 Ill. 195, 57 N.E. 26, 50 L. R. A. 60.

'As was said in Smith v. McDuffee, 72 Or. 276, 284, 142 P. 558, 143 P. 929, such searches are usually made without the consent of the...