Johnston v. State

• Decision Date: 03 June 1913
• Citation: 62 So. 655,65 Fla. 492
• Parties: JOHNSTON v. STATE.
• Court: Florida Supreme Court

62 So. 655

65 Fla. 492

JOHNSTON v. STATE.

Florida Supreme Court

June 3, 1913

Rehearing Denied July 2, 1913.

Error to Circuit Court, Santa Rosa County; J. Emmet Wolfe, Judge.

Hazel Johnston was convicted of unlawfully selling intoxicating liquors as a second offense, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where two names are presented to the consideration of the court the inference that they designate the same individual is strong in proportion as the differences between the two are slight, and, conversely, the inference of identity is weak as the points of difference between the two names are numerous and marked.

Section 1 of chapter 5688, Laws of Florida of 1907, makes the certificate of the United States revenue collector of licenses issued to parties to conduct the business of liquor dealers prima facie evidence in all the courts of this state that the person holding, owning, paying for, or possessing such United States revenue license, is a dealer in such intoxicants, not expressly as a second offense, but simply of the fact that during the time covered by such United States revenue license the holder thereof is or was a dealer in such liquors. Of course, the prosecutor in the trial of a party on a charge of a second offense must show by evidence aliunde the first conviction, and a dealing in or sale of intoxicants subsequently thereto that was not covered by or included within the charge upon which the first conviction was had but this does not detract from the value of the United States revenue license as prima facie evidence of the bare fact that the holder or owner thereof was during the whole time covered by such license a dealer in intoxicants, whether under it he made one sale, or from day to day and from month to month made continuous and repeated sales thereunder, after having been convicted for the offense of making the first, second or third sale thereunder.

It is the settled rule here that a plaintiff in error or appellant is confined in argument to the specific grounds of objection stated in the trial court, and there ruled upon. If he fails to argue these grounds, the assignment will be treated as abandoned.

COUNSEL Reeves & Watson & Pasco, of Pensacola, and H. S. Laird, of Milton, for plaintiff in error.

T. F. West, Atty. Gen., and C. O. Andrews, of Tallahassee, for the state.

OPINION

TAYLOR J.

The plaintiff in error, hereinafter referred to as the defendant, was indicted, tried, convicted, and sentenced for the crime of unlawfully selling intoxicating liquors in a county where its sale was prohibited by law, as a second offense, under the provisions of section 3 of chapter 6179, Laws of 1911, in the circuit court of Santa Rosa county, and brings his case here for review by writ of error.

At the trial the state offered in evidence a verified and duly certified list of persons in the town of Milton, in Santa Rosa county, who had taken out United States revenue licenses to engage in the business of retail liquor dealers during the year A. D. 1911, made by the United States collector of internal revenue on which list appeared the name of 'H. S. Johnson' as having paid for and obtained a license as retail liquor dealer on September 15, 1911, for the year commencing July 1, 1911, and ending June 30, 1912, said business to be conducted at Milton in the 'Johnston building.'

To the introduction of this paper in evidence the defendant objected on the grounds (1) that it showed on its face that it was issued prior to the time of the first conviction of the defendant; and (2) that it is irrelevant and immaterial. These objections were overruled and the paper admitted as evidence; this ruling was excepted to, and is assigned as error. It is contended here for this assignment that the court erred in admitting the paper for two reasons: (1) Because the name of the defendant 'Hazel Johnston' is not the same as the name 'H. S. Johnson' as given in the admitted document; and (2) because the document exhausted itself as evidence at the first trial and conviction of the defendant for an illegal sale of liquors, and was not admissible in evidence under the statute making a second offense a felony. As to the first of these contentions we think it is untenable. The two names are so nearly alike that it became a question of fact for the jury to decide as to whether they identified the same person--that is, the defendant--particularly is this true where the paper, as in this case, gives the name 'Johnson' when giving the name of the licensee and spelling it 'Johnston' when giving his name as owner of the building where the business was to be conducted. Where two names are presented to the consideration of the court, the inference that they designate the same individual is strong in proportion as the differences between the two are slight; and, conversely, the inference of identity is weak as the points of difference between the two names are numerous and marked. 2 Chamberlayne's Modern Law of Evidence, § 1190.

As to the second contention, that said certificate of the United States revenue collector became functus officio as evidence at the first trial and conviction of the defendant, and that the statute does not make said certificate evidence of a sale of liquors as a second offense which by the statute is made a felony, the first offense being simply a misdemeanor, we think that it, too, is untenable. Section 1 of chapter 5688 Laws approved May 11, 1907, makes such certificate of the United States revenue collector prima facie evidence in all the courts of this state that the person holding, owning, or having in possession or paying for a license or tax stamp to the United States authorities as a dealer in intoxicating liquors is a dealer in such intoxicants, not expressly as a second offense, but simply of the fact that during the time covered by such United States revenue license the holder thereof is or was a dealer in such liquors. Of course, the prosecutor in the trial of a party for a second offense must show by evidence aliunde the first conviction and a dealing in or sale of intoxicants subsequently thereto that was not covered by or included within the charge upon which the first conviction was based, but this does not detract from the value of the United States revenue license as prima facie evidence of the bare fact that the holder or owner thereof was during the whole time covered by such license a dealer in intoxicants, whether under it he made one sale, or from day to day and from month to month made continuous and...