Marks v. State

• Decision Date: 19 June 1934
• Citation: 115 Fla. 497,155 So. 727
• Parties: MARKS v. STATE.
• Court: Florida Supreme Court

155 So. 727

115 Fla. 497

MARKS v. STATE.

Florida Supreme Court

June 19, 1934

Error to Criminal Court of Record, Dade County; E. C. Collins Judge.

Leo Marks was prosecuted for maintaining a gambling house, and to review the judgment he brings error.

Reversed and remanded, with directions.

COUNSEL Vincent C. Giblin, of Miami, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

PER CURIAM.

An information was filed in the criminal court of record of Dade county against the plaintiff in error charging him with maintaining a gambling house. There was attached to the information so filed the following jurat:

'State of Florida, County of Dade.

'Personally appeared before me, Chas. A. Morehead, County Solicitor for Dade County, Florida, who, being first duly sworn, says that the allegations as set forth in the foregoing Information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged.

'Chas. A. Morehead

'County Solicitor, Dade County, Florida.

'Sworn to and subscribed before me this 28th day of July, A. D. 1932.

'A. D. Killian,

'Deputy Clerk of the Criminal Court of Record, Dade County, Florida.

'[Seal of the Criminal Court of Record of Dade County, State of Florida.]'

When arraigned, the defendant filed the following plea in abatement:

'Comes now the defendant, Leo Marks, by his attorneys, and, having heard the information herein read, defends himself against the said information; and says that the State of Florida ought not further to prosecute the said information against him, and that he ought not to be further held to answer the said information for the following reason: That the said information was not filed by the County Solicitor of Dade County, State of Florida, under oath, as required by law, for that the said County Solicitor did not personally appear before any person qualified to administer oaths and swear that the allegations as set forth in the said information are based upon facts that have been sworn to as true and which, if true, would constitute the offense in the said information charged.

'And this the defendant is ready to verify by competent proof. Wherefore, the defendant prays the judgment of the Court whether he shall be called further to answer the said information; and defendant prays that the said information be abated and held for naught and that he be permitted to go hence without day.'

The judge of the criminal court thereupon entered the following order, which is made the basis of one of the assignments of error:

'This cause having come on to be heard upon the plea in abatement this day filed by the defendant to the information herein; and the court having duly considered the matter and being fully advised in the premises:

'It is Ordered and Adjudged that the said plea be, and it is, overruled and denied.

'Done and Ordered in open Court this 29 day of September, A. D. 1932.

'E. C. Collins, Judge.'

Where a plea in abatement is defective in matters of substance, it should be attacked by the state through a demurrer to the plea, while, if it is untrue in fact, issue should be joined on the plea by means of a replication. It is error for a court to summarily order and adjudge that a plea in abatement be overruled and denied where there has been no demurrer interposed thereto questioning its legal sufficiency as a matter of law, even though the plea may in law be insufficient to withstand a demurrer properly interposed. See Livingston v. State, 108 Fla. 193, 145 So. 761 (fourth headnote).

In the present case the plea in abatement should, in addition to the allegations set forth therein, have embraced further allegations directly attacking the authenticity of the jurat which was appended...