Poole v. State

• Citation: 129 Fla. 841,177 So. 195
• Parties: POOLE v. STATE.
• Decision Date: 05 November 1937
• Court: United States State Supreme Court of Florida

177 So. 195

129 Fla. 841

POOLE v. STATE.

Florida Supreme Court, Division B.

November 5, 1937

Rehearing Denied Dec. 7, 1937.

Error to Circuit Court, De Soto County; W. T. Harrison, Judge.

J. D Poole was convicted of stealing a cow, and he brings error.

Affirmed.

COUNSEL W. D. Bell, of Arcadia, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell and Tyrus A. Norwood Asst. Attys. Gen., for the State.

OPINION

WHITFIELD Presiding Justice.

An information was filed by the state attorney in the circuit court for De Soto county charging that J. D. Poole and three others on August 9, 1936, in De Soto county, Fla., 'did steal, take and carry away a certain cow of the goods and chattels of Lykes Brothers Florida Company, a corporation, contrary. * * *' A bill of particulars stated that 'the cow * * * was branded with an L, marked sharp in each ear, and was such a cow as is generally described and referred to as a yellow cow with a motley face.'

The information was sworn to by the state attorney before the clerk of the circuit court for Manatee county on August 21, 1936, and filed in the circuit court for Do Soto county on August 22, 1936. Both counties are in the Twelfth judicial circuit of Florida, and the state attorney is the prosecuting officer of the circuit court in all the counties of the Twelfth judicial circuit, There is an assistant state attorney in the Twelfth judicial circuit.

A motion to quash the information was denied, and after a demurrer to a plea in abatement was sustained, the defendant J. D. Poole alone was found guilty as charged. Motions for an arrest of judgment and for a new trial were overruled, an exception was noted, and the defendant J. D. Poole was sentenced to confinement in the state prison for five years. A writ of error was taken.

Prior to the adoption, at the general election held on November 6, 1934, of amended section 10 of the Declaration of Rights of the Florida Constitution, state attorneys were authorized to file informations in the circuit courts of the state only in misdemeanor cases. See sections 7592 (5449), 8363 (6058), C.G.L.

Amended section 10 of the Declaration of Rights is as follows:

'No person shall be tried for a capital crime unless on presentment or indictment by a grand jury, and no person shall be tried for other felony unless on presentment or indictment by a grand jury or upon information under oath filed by the prosecuting attorney of the court wherein the information is filed, except as is otherwise provided in this Constitution, and except in cases of impeachment, and in cases in the militia when in active service in time of war, or which the State, with the consent of Congress, may keep in time of peace. Any person under such information, presentment or indictment for any felony not capital may be arraigned and may enter a plea in term time or in vacation, and the judgment and sentence of the court on a plea of guilty may be made and entered either in term time or in vacation. The judge of any circuit court is authorized to dispense with the summoning, impaneling, and convening of the grand jury at any term of oucrt by making, entering, and filing with the clerk of said court a written order directing that no grand jury be summoned at such term of court, which order of the circuit judge may be made in vacation or term time of said court. The Legislature shall have power by general legislation to regulate the number of grand jurors to serve upon, or constitute, a grand jury and to fix the number of grand jurors required to vote for and return and indictment or presentment.

'This amendment, upon ratification as aforesaid, shall take effect at midnight on December 31st, 1934, without the necessity of legislation.'

Under this organic amendment a person may be tried for a felony, not capital, 'upon information under oath filed by the prosecuting attorney of the' circuit court. The Constitution does not require the state attorney to take the oath supporting an information charging a noncapital felony, before an officer authorized to administer oaths in the county of the circuit wherein the information is to be filed; and as the oath was taken in Manatee county, a county within the circuit in which the state attorney has official authority, before the clerk of the circuit court for Manatee county which county is in the same judicial circuit as is Do Soto county where the information was filed, such information is not for that reason unauthorized, illegal, or void; but, unless otherwise provided by controlling law, such information must be regarded as being properly authenticated for the filing in the circuit court for De Soto county; both De Soto and Manatee counties being in the Twelfth judicial circuit. 'The prosecuting attorney of the' circuit court is the state attorney of the circuit; and he is 'the prosecuting attorney' who under the amended organic section must file the 'information under oath.' In proposing and adopting the organic amendment it was of necessity contemplated that in some judicial circuits of the state there would be more than one circuit judge, and also one or more assistant state attorneys, and that when two or more judges of a circuit are holding sessions of the circuit court in more than one county of the circuit, the state attorney would be officially engaged in one county with an assistant state attorney serving in another county who could prosecute upon informations only when they are sworn to by the state attorney himself; therefore, in order to dispatch the business of the court, informations may be sworn to by the state attorney in the county of his circuit where he might be, before an officer authorized to administer oaths in that county, the informations so sworn to by the state attorney to be filed in the circuit court of another county in the same circuit. Illness or other causes might justify the state attorney acting in his circuit in making oath to an information to be filed in his circuit, but in another county of the circuit. The information was not illegally sworn to and authenticated.

Amended section 10 of the Declaration of Rights does not require informations to be filed in term time, and the statute authorized informations to be filed in the circuit court in term time, or in vacation....