Overstreet v. Whiddon

• Decision Date: 13 November 1937
• Citation: 177 So. 701,130 Fla. 231
• Parties: OVERSTREET v. WHIDDON, Sheriff.
• Court: Florida Supreme Court

177 So. 701

130 Fla. 231

OVERSTREET v. WHIDDON, Sheriff.

Florida Supreme Court, Division A.

November 13, 1937

Rehearing Denied Jan. 8, 1938.

Original habeas corpus proceeding by L. E. Overstreet against W. B Whiddon, as Sheriff of Levy County, Florida.

Motion to quash return denied, and relator remanded to custody of respondent.

COUNSEL Zach H. Douglas, of Gainesville, and James H Bunch, of Jacksonville, for petitioner.

Cary D Landis and Roy Campbell, both of Tallahassee, J. C. Adkins of Gainesville, and J. B. Hodges, of Lake City, for respondent.

OPINION

BUFORD Justice.

This is an original proceeding in habeas corpus.

Petitioner attacks eleven informations, nine of which are alike as to alleged infirmities. It is not needful to quote these informations, as the alleged infirmity appears in the manner in which the alleged date of the occurrence of the offense is stated. That part of each of such nine informations is as follows: 'That J. C. Sale and L. E. Overstreet of the County of Levy and State of Florida, on the 6th day of June, in the year of our Lord one thousand nine hundred and thirty-six in the County of Levy and State of Florida, or at some time after June 2nd 1936, and on or before the 6th day of June, A.D. 1936, the exact time being unknown.' Then follows the allegations charging the offense.

The contention of the relator is based on the enunciations found in the case of Morgan v. State, 51 Fla. 76, 40 So. 828, 7 Ann.Cas. 773, and authorities there cited. In that case it was alleged that the offense was committed 'on or about the 27th day of June, A. D. 1905.' In that case it was held:

'A date upon which the alleged crime was committed must be alleged in the indictment with definiteness and certainty whether such specific date be proved at the trial or not.'

Mr. Justice Parkhill prepared the OPINION. In the opinion the question was exhaustively and learnedly treated, and it concludes with the following observation:

'If it appears illogical to hold that the precise day must be stated in the indictment, but that the offense may be proved to have been committed on any other day not so remote that the statute of limitations would bar the prosecution, it is sufficient to say that it was so at common law. 'A time,' says Clark, 'must always be stated at common law, but any time before the finding of the indictment and within the period of limitation may be given, and a different time may be shown at the trial.' Clark's Crim.Prac. 238. The indictment should allege a day certain to show that the prosecution is not barred by the statute of limitations. United States v. Winslow, supra, Fed.Cas. No. 16,742. This rigid rule of common law has been abrogated in England by statute, 14 and 15 Vict., and it has been thought necessary to change the common law in this respect by statutes in many of the states of our Union. We do not feel justified in following the courts of Connecticut in their modification of the common law until our Legislature has clearly abrogated the common-law rule in the strictness required in alleging the time of the commission of an offense. This question was before this court in the case of Morgan v. State, reported in 13 Fla. 671, and it was there said 'Charging that the offense was committed 'on or about' a certain day has been universally held to be indefinite, and fatal upon demurrer or motion to quash. * * * If no time or place be stated, or if the time or place stated be uncertain or repugnant, the defendant may demur or move in arrest of judgment, for the defect is not cured by verdict. The defendant is moreover entitled to be informed of the time when, and the place where, the offense is alleged to have been committed, in order that he may be enabled to prepare to meet the charge.' The court in that case said 'what may be the effect upon this point of the statute relating to technicalities in indictments it is unnecessary to determine here; we desire only to call attention to a very loose and dangerous practice.'

'In arriving at our conclusion herein, we have not overlooked the provisions of section 2893 Rev.St.1892, which provides that 'no indictment shall be quashed or judgment be arrested or new trial be granted on account of any defect in the form of the indictment or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment shall be so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.' We do not think that this statute abrogates the common-law rule in force here that a date upon which the alleged crime was committed must be alleged in the indictment with definiteness and certainty whether such specific date be proved at the trial or not.'

The allegation as found in the informations satisfies every reason advanced in that opinion for holding that the allegations of date in an indictment or information must be definite and certain. The dates used placed the commission of the offense within the period of four definite successive days, or within the period of ninety-six consecutive hours, all of which days and hours were clearly within the period of the statute of limitation. The allegation is entirely different from the allegation of 'on or about the 6th day of June, 1937,' because there is no fixed rule by which we may determine what period of time is covered by that allegation. The allegation used in this information leaves no range for conjecture. The defendant is definitely advised as to the time when he is alleged to have committed the alleged offense. He is not subjected to surprise and may prepare his defense having regard to the time fixed in the information. It may be that the state by stating the time definitely during which the offense is alleged to have been committed has as effectually confined itself to proof within the time alleged as it would have by alleging the offense to have been committed on one particular day and then filing a bill of particulars designating four consecutive days, including the day alleged in the informantion as the period within which it would prove the offense to have been committed.

As against this attack on the nine informations referred to, we hold them sufficient.

One of the other informations charges that:

'The said J. C. Sale, as County Judge aforesaid, and the said L. E. Overstreet as Supervisor of Registration aforesaid, constituting and comprising two members of the County Canvassing Board of Primary Elections, after the returns, including tally sheets or tally books, of a primary election held in each and every precinct of said County and State on June 2, 1936, had been received by the County Judge and the Supervisor of Registration aforesaid, and by virtue of the office held by each of them, they were each charged, among other things, with the duty of suing and exercising and causing to be used and exercised all proper, reasonable and effective means, and all means within the power of each of them as, county Judge aforesaid, and as Supervisor of Registration aforesaid, of especially preserving the returns, including the tally sheets or tally books, of and for each and every precinct in said County, so that the returns, including the tally sheets or tally books, would show the actual vote cast in each and every precinct for each and every candidate voted for in said election, as recorded by the Inspectors and Clerks for each Precinct, and notwithstanding the office held by each of them, and the duty of each of them as such officer aforesaid, the said J. C. Sale as County Judge aforesaid, and the said L. E. Overstreet as Supervisor aforesaid, did wilfully, carelessly, and in a grossly negligent manner fail and omit to perform the duties aforesaid, enjoined by law upon them and each of them aforesaid, as public officers, in this, to-wit: After the returns, including the tally sheets or tally books, of the primary election held in each and every precinct of said County and State as aforesaid, were received by the County Judge and Supervisor of Registration as such, that the said County Judge and said Supervisor of Registration did wilfully, carelessly and in such a grossly negligent manner permit the tally sheets or tally books for election precinct No. 10, known as Judson, together with other records of said election held in said precinct, to be and remain in a place where the same could be destroyed, mutilated, defaced, erased and altered.'

These allegations are insufficient to charge any offense, because they fail to point out, with any degree of certainty, how or in what manner the alleged negligence was effectuated. The allegations do not advise the defendant as to what act he performed, or what act he failed to perform upon which the state bases its allegation of wilful negligence. The allegations in effect state that the defendant did willfully carelessly, and in such grossly negligent manner permit the tally sheets or tally books, and other records of precinct No. 10, known as Judson, to be and remain in a place where the same could be destroyed, mutilated, defaced, erased, and altered. The allegation does not state what sort of place the records were permitted to be placed and remain in. There is practically no place where records could be permitted to be placed or remain that is so secure that they could not be destroyed, mutilated, defaced, erased, and altered. So far as the allegations of this information are concerned, the defendant is not advised...