Horton v. Mayo

Decision Date22 October 1943
Citation153 Fla. 611,15 So.2d 327
PartiesHORTON v. MAYO.
CourtFlorida Supreme Court

C. J. Horton in pro per.

J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen for appellee.

BROWN, Justice.

This case involves an attempt to review and set aside, in this habeas corpus proceeding, a judgment of conviction for grand larceny upon the ground that the information was fatally defective in that it alleged that the larceny was committed on a date more than two years before the information was filed.

The statute provides that: 'All offenses not punishable with death shall be prosecuted within two years after the same shall have been committed.' Section 7113, C.G.L. section 932.05, Florida Statutes 1941, F.S.A.

The information was filed July 18, 1942, in the Criminal Court of record of Dade County. It was entirely sufficient to charge the offense of grand larceny. It charged the defendant, C. J. Horton, alias Arthur Meyers, with the larceny of $9,200, in lawful money the property of Hannes Hill, on January 31, 1937. Thus it appears on the face of the information that the crime charged had been committed about four and a half years before the information was filed, and that the two year statute of limitations had apparently long since run. The defendant petitioner here, filed no motion to quash, but plead not guilty and went to trial. He was represented by able counsel. Motion to quash would have been an appropriate remedy, as the information did not allege that it was based upon or had any connection with a previous prosecution which was commenced within two years after the offense was committed. Rouse v. State, 44 Fla. 148, 32 So. 784 1 Ann.Cas. 317.

The Criminal Procedure Act of 1939, c. 19554, section 142, now appearing as Section 909.06, Florida Statutes 1941, F.S.A., provides that: 'If the defendant does not move to quash the indictment or information before or at the time he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash.' See also in this connection Section 906.25, Fla.Stats. 1941, F.S.A.

We have held, as to all offenses not punishable with death, that not only should the information show or allege, but the State must prove, the institution of prosecution for the offense charged within two years after the offense was committed. Nelson v. State, 17 Fla. 195; Anderson v. State, 20 Fla. 381; Rouse v. State, supra. There may be some variance between the date alleged in the information as being the date the offense charged was committed and that proven on the trial, which variance is immaterial if the proof shows that the crime was committed before the filing of the information and that prosecution therefor was begun within the two year period, except in those rare cases (not here in point) where the exact time enters into the nature or legal existence of the offense. Alexander v. State, 40 Fla. 213, 23 So. 536; Thorp v. State, 64 Fla. 154, 59 So. 193; Hunter v. State, 85 Fla. 91, 95 So. 115; Overstreet v. Whiddon, 130 Fla. 231, 177 So. 701.

The respondent's answer or return shows that petitioner was held under a commitment from the Criminal Court of Record dated November 5, 1942, and attached a copy of the Court's judgment of conviction and sentence, dated November 3, 1942. The answer alleged that the information upon which the trial was had and judgment was rendered was based upon a prosecution for the same offense begun on March 8, 1939, by the filing of an affidavit before, and the issuance of a warrant of arrest thereon on said date by, the Justice of the Peace of the Second District of Dade County, which warrant of arrest was delivered on the same day, according to the justice of the peace docket, to Constable Wood for service, as shown by Justice of the Peace docket attached to said return. The respondent's answer alleges that the allegations therein contained are made to appear by the transcript of record filed in the office of the clerk of this Court on March 11, 1943, in connection with the appeal of C. J. Horton from the judgment upon which the commitment referred to was and is predicated, which transcript is by reference made a part of the respondent's said answer. This appeal was dismissed later because the grounds of appeal were not embraced in the transcript. The affidavit filed with and the warrant issued by the Justice of the Peace on March 8, 1939, charged the defendant with the same offense, and in practically the same words as used in the information, but alleged that the offence was committed on April 8, 1937. So there was a variance as to the date on which the offense was alleged to have been committed, in that the information charged that it was committed on January 31, 1937, whereas the affidavit and warrant charged...

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32 cases
  • Smith v. State
    • United States
    • Florida District Court of Appeals
    • 21 d3 Dezembro d3 2016
    ... ... (Emphasis added.) In Horton v. Mayo , 153 Fla. 611, 15 So.2d 327 (1943), the court noted that the face of the information indicated it was filed more than four years after the ... ...
  • Tucker v. State
    • United States
    • Florida District Court of Appeals
    • 22 d2 Junho d2 1982
    ... ... King, 282 So.2d 162 (Fla.1973); Mead v. State, 101 So.2d 373 (Fla.1958); Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946); Horton v. Mayo, 153 Fla. 611, 15 So.2d 327 (1943); Nelson v. State, 17 Fla. 195 (1879), 6 and that even the affirmative act of requesting jury ... ...
  • Harris v. Wainwright
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 21 d2 Janeiro d2 1969
    ... ... Horton v. Mayo 153 Fla. 611, 15 So.2d 327 (Fla.1943); State v. Lewis 152 Fla. 178, 11 So.2d 337 (Fla.1943); Potsdamer v. State, 17 Fla. 895 (Fla.1880); ... ...
  • Lowe v. State
    • United States
    • Florida Supreme Court
    • 25 d2 Julho d2 1944
    ... ... punishable with death shall be prosecuted within two years ... after the same shall have been committed. See Horton v ... Mayo, Fla., 15 So.2d 327. The law places the burden of ... proof on the prosecution, upon the trial of a criminal case, ... to show that ... ...
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