State ex rel. Swanboro v. Mayo
| Decision Date | 12 December 1944 |
| Citation | 19 So.2d 883,155 Fla. 330 |
| Parties | STATE ex rel. SWANBORO v. MAYO, Commissioner of Agriculture and Supervisor of State Prison. |
| Court | Florida Supreme Court |
Frank L Butts, of Miami, for petitioner.
J. Tom Watson, Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for respondent.
On petition for writ of habeas corpus it was alleged that petitioner was convicted under an information which charged that 'Rennen Swanboro of the County of Palm Beach and State of Florida on the 14th day of December in the year of our Lord, one thousand nine hundred and forty-three in the County and State aforesaid, did then and there knowingly commit a lewd and lascivious act in the presence of children under the age of fourteen years, to-wit: in the presence of Ola Artie Pittman and Ann Weems, without intent to commit rape upon such children (Sec 800.04 1943) contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.'
It was alleged that such information charged no offense against the laws of the State of Florida and it was further contended that Sec. 1 of Chapter 21974, Acts of 1943, carried forward as Sec. 800.04 of 1943 Cumulative Statutes of Florida, F.S.A., is unconstitutional and void.
Pursuant to the issuance of writ, respondent has made his return. In the return respondent denies that petitioner is unlawfully held and restrained of his liberty and avers that he is detained and held by the State Prison Custodian by virtue of a commitment issued pursuant to a valid judgment of a court of competent jurisdiction.
It is further alleged that the information upon which petitioner was tried and convicted embraces the language of the statute, supra and that therefore, the imformation charged a crime known to the laws of the State of Florida. $Petitioner now has in effect moved for discharge, the return notwithstanding.
The statute involved here in Sec. 1 of Chapter 21.974, Acts of 1943, and is as follows: 'Any person who shall handle, fondle or make an assault upon any child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without intent to commit rape upon such child shall be deemed guilty of a felony and punished by imprisonment in the state prison or county jail for not more than ten years.' We hold that there is no doubt as to the validity of the statute. The statute did not attempt, however, to define the acts which would constitute a lewd and lascivious act. It therefore, follows that whether or not the act charged constituted a lewd and lascivious act was a question to be submitted to a court of competent jurisdiction for its determination. Whether or not the act charged by the indictment or information and held by the court to constitute a violation of the statute was committed by accused is a matter to be determined by the jury. It also follows that under ...
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Osborne v. Ohio
...such person would probably have been . . . branded as a lewd, lascivious, and indecent person' ") (quoting State ex rel. Swanboro v. Mayo, 155 Fla. 330, 332, 19 So.2d 883, 884 (1944)). 12. The danger of discriminatory enforcement assumes particular importance of the context of the instant c......
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...the accused would be put on notice and be advised as to the act as to which he must present his defense.' State ex rel. Swanboro v. Mayo, 1944, 155 Fla. 330, 19 So.2d 883, 884. The only act alleged in the information in the instant case is the exhibition of a lewd and pornographic picture i......
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