State Ex Rel. Reed v. Blitch

• Decision Date: 22 February 1929
• Citation: 97 Fla. 260,120 So. 355
• Parties: STATE ex rel. REED et al. v. BLITCH, Superintendent of State Prison Farm.
• Court: Florida Supreme Court

120 So. 355

97 Fla. 260

STATE ex rel. REED et al. v. BLITCH, Superintendent of State Prison Farm.

Florida Supreme Court, Division B.

February 22, 1929

Habeas corpus proceeding by the State, on the relation of Richard Reed and Sollie Gay, to secure petitioners' discharge from the custody of J. S. Blitch, Superintendent of the Florida State Prison Farm.

Petitioners discharged.

Syllabus by the Court

SYLLABUS

Detention of defendant under judgment based on indictment which fails to charge offense is illegal. If indictment or information fails to charge an offense, court is without authority to pronounce sentence or judgment of conviction, and detention of defendant under the judgment is therefore illegal.

Indictment for perjury should state true facts, in addition to averment that testimony was false. Indictment for perjury should negative truth of alleged false swearing, by stating the true facts, in addition to averment that testimony of defendant was false.

Indictment for perjury must allege that oath was administered by authorized person, and that court had jurisdiction. Indictment for perjury must allege that party charged was duly sworn, and that oath was administered by authorized person, and that court in which perjury was committed had jurisdiction of the cause.

Failure to allege court had jurisdiction or that false statement related to material fact, and failure to set out true facts rendered information for perjury void, and entitled defendants to discharge from custody after sentence. Information, in perjury prosecution, which failed to allege that false statement was made in relation to any fact material to issues being tried, and which failed to negative truth of false swearing by stating actual facts, or to allege that court in which oath was given had jurisdiction to try the case,held void as basis for criminal prosecution requiring release of defendants from custody under conviction and sentence pursuant thereto.

Under information charging seven defendants with perjury, failure of record to show entry of judgment against particular defendants entitled them to release. In prosecution of seven defendants for perjury, failure of record to show entry of judgment of conviction against particular defendants held fatal defect, entitling them to release from custody under sentence by habeas corpus.

COUNSEL

D. E. Knight, of Starke, for petitioners.

OPINION

BUFORD, J.

The petitioners were informed against in the criminal court of record in and for Polk county. The information was in the following language:

'In the name and by authority of the state of Florida, J. H Peterson, County Solicitor for the County of Polk prosecuting for the State of Florida in the said County, under oath, information makes that Sollie Gay, Sr., Sollie Gay, Richard Reed, Freddie McQueen, Fred Gadson, Phillip Ferguson, Charlie Henderson of the County of Polk and State of Florida, on the 7th day of September in the year of our Lord one thousand nine hundred and twenty-eight in the County and State aforesaid, being lawfully required to depose the truth in a certain judicial proceeding in a Court of Justice, to-wit: the Municipal Court in the City of Lakeland, Florida, wherein, the City of Lakeland, Florida, was plaintiff and Sollie Gay, Sr. was defendant charged with a violation of the Prohibitory liquor laws of the City of Lakeland, Florida, did unlawfully, wilfully and feloniously commit the crime of perjury by swearing falsely under oath, the said oath having been administered to each of the above named defendants by an officer duly authorized to administer oaths, to-wit: W. J. DeLoach, City Judge of the City of Lakeland, Florida, that Sollie Gay, Sr., was in Lake Wales, Florida, on the 3rd day of September, 1928, which said testimony was false and known by each of the said defendants above named to be false and which said testimony was material to the issues in the said judicial proceeding contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida. J. H. Peterson, County Solicitor, Polk County, Florida.'

The record shows that the petitioners pleaded guilty, and were sentenced to serve a period of two years at hard labor. The certified copy of the record presented to this court in that regard reads as follows:

'In the Criminal Court of Record in and for Polk County, Florida.

'State of Florida

v.

Sollie Gay, Sr., Sollie Gay, Richard Reed, Freddie McQueen, Fred Gadson, Phillip Ferguson & Chas. Henderson.

No. 7635.

Perjury.

'The defendants in the above cause appeared before the Court and being duly arraigned, did then and there, freely and voluntarily, enter pleas of guilty to said information and thereupon the Court asked the defendants if they had anything to say why the sentence of the law should not be passed upon them, and they sayeth nothing:

'It is, therefore, ordered and adjudged by the Court, and the sentence of the Court is that you, Sollie Gay, Sr., be imprisoned in the State Prison of Florida at hard labor for the term of Three years. This Sept. 28th, 1928.

'It is, therefore, ordered and adjudged by the Court, and the sentence of the Court is that you, Sollie Gay, Richard Reed, Freddie McQueen, Fred Gadson, Phillip Ferguson and Chas. Henderson, each be imprisoned in the State Prison of Florida at hard labor for the term of two years. This Sept. 28th, 1928.'

Having been sent to prison under a commitment duly issued, the petitioners applied to a justice of this court for a writ of habeas corpus, which was issued, and the cause came on for hearing and was submitted to the court by the attorney for the petitioners and the office of the Attorney General. It will be observed that the information does not allege that the court in which the alleged oath was given was a court then and there having...