Kittleson v. State

Decision Date02 October 1942
Citation9 So.2d 807,152 Fla. 242
PartiesKITTLESON v. STATE.
CourtFlorida Supreme Court

Whitaker Brothers, of Tampa, for plaintiff in error.

J. Tom Watson, Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for defendant in error.

BUFORD, Justice.

On writ of error we review judgment in habeas corpus proceedings remanding the petitioner to the custody of respondent.

Where an indictment or information entirely fails to charge a criminal offense the accused may test the sufficiency thereof in habeas corpus proceedings. See Skipper v. Schumacher, 124 Fla 384, 169 So. 58; State ex rel. v. Coleman, 131 Fla 892, 180 So. 357; Jones v. Cook, 146 Fla. 253, 200 So. 856; § 140, Florida Criminal Procedure Act, Acts 1939, c 19554.

The information in this case appears as follows:

'In the Criminal Court of Record, Hillsborough County, State of Florida.

'Joseph E Williams, County Solicitor for the County of Hillsborough prosecuting for the State of Florida, being present in said court on the 9th day of January, A. D. 1942, for an amended information in this case, charges that:

'First Count:

'Kenneth Kittleson, on the 23rd day of October, A. D. 1941, in said County and State, was a lewd, wanton, and lascivious person;

'Second Count:

'Kenneth Kittleson on the 23rd day of October, A. D. 1941, in said County and State, was guilty of open and gross lewdness and lascivious behavior.

________

'County Solicitor for the County of Hillsborough, State of Florida.

'(Bill of Particulars attached hereto and made a part hereof).

'State of Florida

'County of Hillsborough

'Personally before me came Joseph E. Williams, County Solicitor for Hillsborough County, who being by me first duly sworn says that the allegations set forth in the foregoing amended information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense in said information charged.

________

'Subscribed and sworn to before me, this __ day of January, A. D. 1942.

________

'Clerk of the Criminal Court of Record, Hillsborough County, Florida.'

From the transcript of the record before us it does not appear that the information was either signed or verified under oath, but we assume it was, as no point is made in that regard.

To the information it appears that there was attached a paper referred to as a bill of particulars, which was not sworn to or verified. Its contents are too filthy to be quoted for publication. That document cannot be looked to as supplying the allegations necessary in the information to constitute a charge of a criminal offense. See Middleton v. State, 74 Fla. 234, 76 So. 785; Smith v. State, 93 Fla. 238, 112 So. 70.

The record indicates that it was attempted to charge in each count of the information a violation of the provisions of section 798.02 or the provisions of section 847.05 or the provisions of section 800.03, Florida Statutes, 1941. These are kindred statutes dealing with lewd and lascivious conduct but penalties thereunder are not identical. Some of the statutes, supra, do not attempt to define the acts or conduct which may constitute the offenses condemned and as the acts which would fall within the purview of the Acts may only be limited in number and manner of performance by the ingenuity of the combined depraved minds of the evil men and women of present and passed ages, a charge so indefinite as those now before us in nowise advises the accused of what act the State will rely upon for conviction. section 847.05, supra, as well as the other sections above cited are comparable to Section 847.04 Florida Statutes, 1941,...

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11 cases
  • State v. Straughan
    • United States
    • Louisiana Supreme Court
    • March 26, 1956
    ...167; United States v. Callanan, D.C., 113 F.Supp. 766; United States v. Lattimore, 94 U.S.App. D.C. 268, 215 F.2d 847; Kittleson v. State, 152 Fla. 242, 9 So.2d 807; People v. Flynn, 275 Ill. 366, 31 N.E.2d 591; Campfield v. State, 91 Ohio App. 74, 105 N.E.2d 661; State v. Kearns, Ohio Com.......
  • Campbell v. State, 46530
    • United States
    • Florida Supreme Court
    • March 31, 1976
    ...touching of a member of a Girl Scout troop on a holiday outing. A conviction under this clause was reversed in Kittleson v. State, 152 Fla. 242, 9 So.2d 807 (1942), for failure of the State to charge an offense under the statute. There, the State attemped to supply allegations necessary to ......
  • Kelly v. State ex rel. Leonard
    • United States
    • Florida Supreme Court
    • October 10, 1956
    ...for the circuit court to consider the contract as a part thereof. Middleton v. State, 74 Fla. 234, 76 So. 785 and Kittleson v. State, 152 Fla. 242, 9 So.2d 807. In arriving at an answer to the second question, as stated above, an examination of the purpose of the writ of habeas corpus revea......
  • State v. Beasley, 44929
    • United States
    • Florida Supreme Court
    • July 30, 1975
    ...Criminal Procedure 3.140(b) and 3.140(d)(1), and Florida Criminal Rules and Practice at 53 (The Florida Bar CLE 1974); Kittleson v. State, 152 Fla. 242, 9 So.2d 807 (1942); Rosin v. Anderson, 155 Fla. 673, 21 So.2d 143 (1945); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d......
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