Joiner v. State
| Decision Date | 22 September 1926 |
| Citation | 109 So. 807,92 Fla. 711 |
| Parties | JOINER v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Sarasota County; W. T. Harrison, Judge.
John Joiner was convicted of a second violation of the prohibition law, and he brings error.
Reversed.
Syllabus by the Court
Indictment for second offense of possession of alcoholic liquors, merely charging previous conviction was for possessing alcoholic liquors without charging such possession was unlawful, was defective (Rev. Gen. St. 1920, § 5486). An indictment charging a second violation of the prohibition law, relating to the unlawful possession of alcholic liquors, is defective as to the allegation of a previous conviction, where it merely charges that such previous conviction was 'for the offense of possessing alcoholic liquors' without charging that such possession was unlawful.
Indictment or information merely charging possession of intoxicating liquor is not sufficient to charge criminal offense without alleging that such possession is unlawful. As our statute makes possession of alcoholic or intoxicating liquors under certain circumstances and for certain purposes legal, an indictment or information merely charging possession of such liquors is not sufficient to constitute a charge of a criminal offense.
Statute making possession of intoxicating liquor prima facie evidence of unlawful possession does not make valid indictment, which charges second offense of possession of intoxicating liquor without alleging that prior possession was unlawful (Acts 1923, c. 9267). Although the Legislature can lawfully provide that proof of mere possession by the accused shall constitute prima facie evidence of unlawful acquirement and possession such a rule of evidence would not operate to change the principles of pleading in criminal cases, which require that an indictment or information, to be legally sufficient, must charge a criminal offense.
The best evidence which is reasonably obtainable, and which the nature of the case admits of, must always be adduced, unless some good reason is shown for failure to do so, which will in some cases make secondary evidence admissible.
In prosecution for second offense of possession of liquor, in absence of evidence explaining failure to produce minute book showing complete judgment of prior conviction, admitting bench docket, failing to show conviction of any legally stated offense against prohibition law, is error (Rev. Gen St. 1920, § 3331). In the absence of any evidence explaining the failure to produce the minute book showing the complete judgment of conviction, it is error to admit in evidence, to prove a previous conviction of the violation of the prohibition laws, the bench docket containing a memorandum of the court's action, which memorandum fails to show a judgment of conviction of any legally stated offense against the prohibition law.
Frank Redd, Marion B. Jennings, and J. Irvin Walden, all of Sarasota, for plaintiff in error.
J. B Johnson, Atty, Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
The plaintiff in error was convicted of the offense of a second violation of the prohibition law relating to the unlawful possession of intoxicating liquors, and sentenced to pay a fine of $200 and one year's imprisonment at hard labor in the state prison. To the judgment of conviction he took writ of error.
As chapter 9266 of the Laws of 1923 has been recently held unconstitutional (Porter v. State [Fla.] 108 So. 814, decided at the January term, 1926), this prosecution will be deemed to have been conducted under section 5486 of the Revised General Statutes 1920, which the void act sought to amend.
The contention of plaintiff in error that the indictment as to the allegation of previous conviction is defective, in that the alleged conviction was 'for the offense of possessing alcoholic liquors,' without charging that such possession was unlawful, is correct. This is such a fundamental error as would require consideration by the court without any assignment of error. Gunn v. State, 78 Fla. 599, 83 So. 511. The same question is involved in one of the rulings on the evidence.
As our statutes on the subject make possession of alcoholic or intoxicating liquors under certain circumstances and for certain purposes legal, an indictment or information merely charging possession of such liquors is insufficient. While the better practice would probably require the charging of possession for sale, or for some other unlawful purpose, we have recently held that in this particular an information charging the defendant in general terms with 'unlawful possession' will be deemed sufficient. It is fundamental that, to be of any legal force, an indictment or other criminal accusation upon which a prosecution is founded must charge a criminal offense. It is not necessary to expressly negative exceptions allowed by the statutes, but this does not relieve the prosecutor of the duty to so frame his charge as to show on its face a criminal offense. Under an indictment merely charging possession of alcoholic liquors an ordained minister, having wine in his possession for sacramental purposes, or a licensed druggist, possessing alcohol for medical purposes, could be found...
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Sparkman v. State Prison Custodian
...and accordingly the judgment of conviction was reversed. See State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228; Joiner v. State, 92 Fla. 711, 109 So. 807; Reynolds v. State, 92 Fla. 1038, 111 So. Smith v. State, 96 Fla. 553, 119 So. 145; Langford v. State, 111 Fla. 506, 149 So. 570.......
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