Norwood v. State
| Decision Date | 25 October 1920 |
| Citation | 86 So. 506,80 Fla. 613 |
| Parties | NORWOOD v. STATE. |
| Court | Florida Supreme Court |
Columbus Norwood was convicted of violation of the prohibition law and he brings error.
Reversed.
Syllabus by the Court
Indictment charging manufacturing of intoxicating liquors held not bad because it contained fact allegations under statute prohibiting sale. An indictment, charging one with the offense of manufacturing alcoholic and intoxicating liquors in a county where the sale of liquors had been prohibited by law, and such offense is alleged to have been committed after the passage of chapter 7736, Laws Extra Sess. 1918, is not bad because it contains some allegations of fact required by chapter 7283, Laws of 1917, as to the sale of intoxicating liquors having been prohibited by law in the county where the offense was alleged to have been committed.
Presentation of assignment of error on application to authenticate bill made up under court rules held not necessary. Where a bill of exceptions is made up under rule 103, no assignment of errors is required to be presented to the judge when application is made to him to authenticate the bill.
Charge of manufacture held not supported by evidence by possession of liquor not proven alcoholic nor intoxicating. A charge in an indictment that the defendant manufactured alcoholic and intoxicating liquors is not supported by evidence that the defendant had in his possession four gallons of 'buck,' without any evidence that the liquid was either alcoholic or intoxicating.
To support indictment charging second offense, state must produce record of prior judgment of conviction. To support an indictment charging the defendant with the manufacture of alcoholic and intoxicating liquors as a second offense of a like character, it is necessary for the state, in proof of the latter allegation, to produce the record of the prior judgment of conviction.
Laws relating to effect of judgments or decrees as evidence held not to apply to judgment of county court. Comp. Laws 1914, § 1522, making final judgments or decrees of circuit courts, or certified copies thereof, prima facie evidence of entry and validity thereof, held not to apply to a judgment rendered by county courts.
Appeal to Circuit Court, Gadsden County; E. C Love, Judge.
W. C Hodges and Fred H. Davis, both of Tallahassee, and J. Baxter Campbell, of Quincy, for plaintiff in error.
Van C. Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.
In October, 1919, Columbus Norwood was indicted for the 'manufacture' of 'alcoholic and intoxicating liquors' in Gadsden county. It was alleged that the 'sale of liquors' was prohibited in that county by law, and that the accused had theretofore, in May, 1919, in Gadsden county, been convicted of manufacturing alcoholic and intoxicating liquors. The offense was alleged to have been committed in July, 1919. A motion to quash the indictment upon the ground that it charged no offense under the laws of Florida was denied.
It is contended by counsel for plaintiff in error that the indictment charges an offense partly under chapter 7283, Laws of 1917, and partly under chapter 7736, Laws Extra Sess. 1918, because it charges that the accused manufactured the liquor in Gadsden county in which the sale of intoxicating liquor is prohibited by law, and that he had theretofore been convicted in May, 1919, of a like offense, the first condition appearing in the act of 1917, and the latter in the act of 1918, neither act containing both conditions.
Section 23 of chapter 7736, Acts Extra Sess. 1918, provides that the act shall be 'construed as supplementary to the act approved April 24, 1917 [chapter 7283], and so much of said act as is not clearly inconsistent with the provisions of this act shall remain in full force and effect throughout the state when this act goes into effect.' The purpose seems to have been to enact a new statute under article 19, as amended, of the Constitution, and retain as many of the provisions of the old law as possible, upon the theory, perhaps, that if any delinquent might escape the provisions of the new, he could be caught under the old act. The indictment seems to have been drawn upon the same principle, which is not to be recommended so far as pleading is concerned, because there is danger always of misleading the accused and embarrassing him in the preparation of his defense, and if the two statutes are in any wise inconsistent or contradictory, or define different offenses, the indictment would be bad. See Townsend v. State, 63 Fla. 46, 57 So. 611; Clark v. State, 68 Fla. 433, 67 So. 135. This indictment, however, cannot be said to be so vague and indefinite as to mislead the accused. The manufacture of alcoholic or intoxicating liquors in a county which had voted against the sale of such liquors was an offense under the act of 1917, but under the act of 1918, it was an offense whether the county had voted against such sale or not. The act of 1917, therefore, being inconsistent with the latter act in this particular, was superseded by the new; that is to say, in so far as the act of 1917 limited the offense to the manufacture of liquor in those counties which had voted against the sale of intoxicating liquors. So much of the indictment therefore as charged the sale of intoxicating liquors in Gadsden county to be prohibited by law was mere surplusage; the allegation was true as to any county in the state. Chapter 7736, Laws Extra Sess. 1918, which became effective in January, 1919, made it so. As the offense as defined by the act of 1917 was abrogated, the defendant could not have supposed that he was accused of crime under that act, as the offense was alleged to have been committed in July, 1919, six months after the new act became effective.
The case of Shields v. State, 83 So. 391, relied upon by counsel for plaintiff in error, is not in point. Shields was charged with an offense alleged...
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