Smith v. State

• Decision Date: 25 March 1918
• Parties: SMITH v. STATE.
• Court: Florida Supreme Court

78 So. 530

75 Fla. 468

SMITH v. STATE.

Florida Supreme Court

March 25, 1918

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

J. J Smith was convicted of a violation of the local option law and he brings error. Reversed.

West J., dissenting.

Syllabus by the Court

SYLLABUS

The selling by any person of intoxicating liquors in a county in this state, which county under the provisions of article 19 of the Constitution has voted against the sale of such liquors, is a misdemeanor, but the selling of such liquors by one in such a county after having been before convicted of the like offense is a felony.

The allegation of former conviction is a material element in the crime of selling intoxicating liquors as a second offense in a county which has voted against such sale, and should be specifically and clearly alleged in the indictment and not left to inference.

A motion to quash an indictment reaches defects which are apparent, whether the same be of form or substance; but when an indictment is attacked by a motion in arrest of judgment the objection should go to some substantial matter to be fatal.

An indictment, charging the defendant with the sale of intoxicating liquors as a second offense in a county which had voted afainst the sale of such liquors, which alleges that the defendant 'had theretofore prior to said sale pleaded guilty * * * of the like offense,' is fatally defective, because such allegation is not equivalent to an allegation that the defendant 'had been before convicted of the like offense.'

The rule is well established that an indictment should allege every necessary element constituting the offense charged, and no such element should be left to inference.

The word 'convicted,' as used in the statute denouncing the sale of intoxicating liquors as a second offense in a county which has voted against the sale of such liquors means adjudication by a court of competent jurisdiction of the defendant's guilt. It involves all the proceedings from the charge to judgment and sentence (citing Words and Phrases, Convicted).

COUNSEL Paul Carter, of Marianna, for plaintiff in error.

Van C. Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

The plaintiff in error was convicted in the circuit court of Jackson county of a violation of the local option laws in that county, and was sentenced by the court to two years at hard labor in the state prison. To this judgment he took a writ of error.

The question presented here is whether the indictment fails to allege an essential element of the offense sought to be charged.

The indictment, omitting the formal parts, is as follows:

'In the Name and by the Authority of the State of Florida:

'The grand jurors of the state of Florida, impaneled and sworn to inquire and true presentment make in and for the body of the county of Jackson, upon their oath do present that J. J. Smith, whose Christian name is unknown to the grand jury of the county of Jackson and the state of Florida, on the 1st day of September in the year of our Lord 1917, in the county and state aforesaid, did unlawfully and feloniously sell and cause to be sold intoxicating liquors, wines, and beer in the county of Jackson of said state, which said county had theretofore voted against the sale of such liquors, wines, and beer under article 19 of the Constitution of the state of Florida, and that the said J. J. Smith had theretofore, prior to said sale, pleaded guilty in the county judge's court of Jackson county, Fla., of the like offense, wherefore the grand jurors aforesaid do say and present that the said J. J. Smith is a common liquor dealer, against the form of the statute in such cases made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the state of Florida.'

The offense of selling intoxicating liquors in a county which, under the provisions of article 19 of the Constitution, has voted against the sale of such liquors is a misdemeanor, but to sell such liquors in such county, 'having been before convicted of the like offense,' is to commit a felony under our statutes. See sections 3556- 3556a, General Statutes 1906, Florida Compiled Laws 1914; chapter 6861, Laws of Florida 1915.

The court below regarded the indictment as sufficiently charging the sale of intoxicating liquors in Jackson county by the defendant as a second offense. That is to say that the defendant 'had been before convicted of the like offense.'

Upon arraignment the defendant pleaded not guilty. He then asked for leave to withdraw the plea in order to move to quash the indictment. The motion to quash the indictment was filed, which showed the grounds of the attack upon it. The request was denied. The defendant was put upon trial, convicted, and sentenced. He moved in arrest of judgment, the motion containing the same ground of attack upon the indictment as was contained in the motion to quash. The motion in arrest of judgment was overruled, and the case comes here for consideration of the two alleged errors which the plaintiff in error contends the court below committed.

The Attorney General and counsel for the plaintiff in error are agreed that the motion for leave to withdraw the plea of not guilty in order that the defendant below might interpose a motion to quash was a matter addressed to the sound judicial discretion of the trial court; and, unless it can be shown that the attack proposed to be made upon the indictment by the motion to quash was vital and affected more than matter of form, no error was committed by the court's order.

This court has said in substance that a motion to quash an indictment performs much the same function as a demurrer. It reaches defects apparent on the face of the indictment. The defect may be one of substance as failure to allege some necessary ingredient of the offense or failure to allege venue, or may show that the prosecution is barred by the statute of limitations, or it may be one of form, as where the allegations are not sufficiently definite or certain to reach the standard of good pleading, although of such character as not to be fatal after verdict. See Barber v. State, 52 Fla. 5, 42 So. 86; Mills v. State, 58 Fla. 74, 51 So. 278; Niblack v. State, 70 Fla. 227, 70 So. 415; Smith v. State, 72 Fla. 449, 73 So. 354.

In this case, in view of the fact that the defendant had pleaded to the indictment, we are of the opinion that it should be tested by the rule which controls where the court considers motions in arrest of judgment. That rule requires that the indictment should receive a liberal construction. See Smith v. State, supra.

By pleading to the indictment the defendant postponed the consideration of the point to be presented until after verdict. Although he afterwords and...