Mooneyham v. Bowles

• Citation: 72 So. 931,72 Fla. 259
• Parties: MOONEYHAM v. BOWLES, Sheriff.
• Decision Date: 03 November 1916
• Court: United States State Supreme Court of Florida

72 So. 931

72 Fla. 259

MOONEYHAM v. BOWLES, Sheriff.

Florida Supreme Court

November 3, 1916

Error to Circuit Court, Jackson County; Cephas L. Wilson, Judge.

Application by James W. Mooneyham for writ of habeas corpus to H. A Bowles, Sheriff. From a judgment remanding the petitioner to imprisonment, he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

An affidavit charging the commission of a statutory offense substantially in the words of the statute is not amenable to the criticism that it wholly fails to charge the criminal offense denounced by the statute.

Section 3403, Gen. St. 1906, Florida Compiled Laws of 1914, provides for the punishment of one who willfully enters upon the inclosed land or premises of another while occupied by the owner or his employés, after having been forbidden to enter or not having been previously forbidden to enter, refused to depart after being warned to do so. Upon a collateral attack an affidavit charging one with an entry upon the inclosed premises of another while occupied by the owner after having been warned not to enter, will be held to sufficiently charge that the entry was willfully made (citing Words and Phrases Willfully).

The writ of habeas corpus cannot be used as a substitute for a demurrer, a motion to quash, a writ of error or certiorari.

COUNSEL James H. Finch, of Marianna, for plaintiff in error.

T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for defendant in error.

OPINION

ELLIS J.

James W. Mooneyham was convicted in the county judge's court for Jackson county for the violation of section 3403 of the General Statutes of Florida, providing for the punishment of persons who willfully enter the inclosed premises of another occupied by the owner or his employés and being forbidden so to enter.

The prosecution was begun by an affidavit made by J. Y. Young before J. H. Tidwell, justice of the peace for the tenth district of that county. The cause was transferred by the justice of the peace to the county judge's court where the trial took place, resulting in defendant's conviction. The court imposed a fine of $75 upon the defendant, and sentenced him to six months' service at hard labor in the county jail in default of the payment of the fine. The sheriff took the defendant into custody under a mittimus issued upon the judgment. Thereupon the defendant applied for a discharge from the custody of the sheriff and confinement in the county jail upon a writ of habeas corpus.

Upon a hearing on the defendant's demurrer to the sheriff's return to the writ the demurrer was overruled, and the defendant remanded. To the judgment of the circuit court in the habeas corpus proceedings the defendant was granted and took a writ of error.

It is contended by the plaintiff in error that the affidavit wholly fails to charge him with any criminal offense under the laws of Florida, and that being true he is entitled to his discharge. Ex parte Bailey, 39 Fla. 734, 23 So. 552; Ex parte Hays, 25 Fla. 279, 6 So. 64; Ex parte Knight, 52 Fla. 144, 41 So. 786, 120 Am. St. Rep. 191; Porter v. State, 62 Fla. 79, 56 So. 406.

The statute against trespass after warning is as follows:

'Whoever willfully enters into the inclosed land and premises of another, * * * which is occupied by the owner or his employés, being forbidden so to enter, or not being previously forbidden, is warned to depart therefrom and refuses to do so, or,' etc. Section 3403, Gen. Stats. of 1906, Florida Compiled Laws of 1914.

The affidavit on which the prosecution was based is as follows, omitting the formal parts:

'Personally came J. Y. Young who, being duly sworn, says that on the 22d day of October, 1915, in the county aforesaid, one Jim Mooneyham did trespass on his inclosed premises after being warned not to do so; said lands being known as the owner's place and which were the premises of deponent, and were then and there occupied by deponent,' etc.

The omission of the word 'willfully' from the affidavit in connection with the language charging the entry or trespass upon the inclosed premises of deponent rendered the affidavit subject to the criticism that it was inaccurately drawn. The defect may have rendered the affidavit subject to demurrer; but it is doubtful if it can be said that the offense charged was not substantially in the language of the statute. The word 'willfully' is defined to mean 'in a willful manner; obstinately; stubbornly;...