State Ex Rel. Hancock v. Love
| Decision Date | 02 August 1940 |
| Citation | 143 Fla. 883,197 So. 534 |
| Parties | STATE ex rel. HANCOCK v. LOVE, Circuit Judge. |
| Court | Florida Supreme Court |
En Banc.
Original proceeding in prohibition by the State of Florida, on the relation of J. T. Hancock, against the Honorable E. C. Love Circuit Judge, based on defendant's action in overruling a motion to quash several informations charging criminal offenses.
Petition for writ of prohibition dismissed.
B. K. Roberts and Weldon G. Starry, both of Tallahassee, for petitioner.
George Couper Gibbs, Atty. Gen., William Fisher, Jr., Asst. Atty Gen., and Oric C. Parker, Jr., State Atty., of Tallahassee for respondent.
In a petition for a writ of prohibition it is in effect alleged that in the Circuit Court for Leon County a motion to quash several informations charging cirminal offenses, filed under the statute predicated upon matters in pais, was overruled by the trial court when it should have been sustained to establish immunity of the petitioner from prosecution under the statutes of the State. The petition for the writ of prohibition is signed by the petitioner and his counsel. The petition is not sworn to by petitioner but is sworn to by counsel 'to the best of his knowledge and belief.' The copy of the motion to quash attached to the petition filed here indicates that it was signed by counsel and sworn to by counsel on 'the best of his knowledge, information and belief.' The motion to quash does not purport to have been signed or sworn to by the defendant.
The Criminal Practice Act, Section 138, Chapter 19554, Acts of 1939, in effect requires the use of a motion to quash an indictment or information charging a criminal offense instead of a plea as theretofore; and such a motion to quash based upon matters in pais, of which the defendant has personal knowledge should be duly sworn to by the defendant. The law does not contemplate that immunity from criminal prosecution may be established or that the jurisdiction of a court of record to try criminal cases may be ousted upon allegations of matters in pais signed by counsel and sworn to on information and belief, not signed and not sworn to by the defendant, when such allegations relate to matters within the knowledge of the defendant and not within the knowledge of counsel.
The trial court was justified in overruling the motion to quash. It was not properly authenticated to establish immunity of the defendant from prosecution for crime or to challenge the jurisdiction of the court to proceed with trials on the information referred to in the motion to quash. As formerly in pleas now allegations of fact in motion to quash indictments and informations charging criminal offenses on grounds that are predicated upon matters in pais may be traversed and appropriate proceedings had thereon. In State ex rel. v. Petteway, 121 Fla. 822, 164 So. 872, cited for petitioner, the pleas were properly signed and duly sworn to by the defendant-petitioner. The demurrer is sustained and the petition for writ of prohibition is dismissed.
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Harris v. Wainwright
...(Fla.1943); State v. Lewis 152 Fla. 178, 11 So.2d 337 (Fla.1943); Potsdamer v. State, 17 Fla. 895 (Fla.1880); State ex rel. Hancock v. Love 143 Fla. 883, 197 So. 534 (Fla.1940); Poppell v. State, 148 Fla. 275, 4 So.2d 331 (Fla.1941). Further, objections to either the form or substance of th......
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State v. Dixon, 7173
...the State, either by admission or by traverse, which would have been essential in an orderly proceeding. State ex rel. Hancock v. Love, Circuit Judge, 1940, 143 Fla. 883, 197 So. 534; Johns v. State, 1940, 144 Fla. 256, 197 So. 791; Johnson v. State, 1946, 157 Fla. 685, 27 So.2d F.S. Sec. 9......
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Johns v. State
...upon matters in pais, of which the defendant has personal knowledge, the same should be sworn to by the defendant. See State ex rel. Hancock v. Love, Fla., 197 So. 534. The transcript of record does not show that any testimony adduced in support of the allegations of the motion to quash. It......
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...to the penalties of the perjury if his recitation of "undisputed facts" is false. Id. at 1016 (emphasis supplied). See State v. Love, 143 Fla. 883, 197 So. 534 (1940); State v. Shull, 390 So.2d 1233 (Fla. 5th DCA 1980); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, 34......