State v. Dubose

• Decision Date: 22 January 1943
• Citation: 152 Fla. 304,11 So.2d 477
• Parties: STATE v. DUBOSE.
• Court: Florida Supreme Court

11 So.2d 477

152 Fla. 304

STATE v. DUBOSE.

Florida Supreme Court

January 22, 1943

Rehearing Denied Feb. 10, 1943.

Appeal from Circuit Court, Columbia County; Hal W. Adams, judge.

J Turner Butler, of Jacksonville, and Alfred T. Airth, of Live Oak, for appellant.

J. B. Hodges, of Lake City, for appellee.

CHAPMAN, Justice.

The State of Florida, pursuant to the several provisions of Sections 562.39 and 562.40, Florida Statutes 1941, presented to the Circuit Court of Columbia County, Florida, its sworn petition, seeking a forfeiture to the State of Florida of one 1937 Ford car, property of Mark DuBose, alleged to have been unlawfully used by him in the transportation of moonshine whiskey in Columbia County, Florida, on August 7, 1941, on which a tax was then due and unpaid to the State of Florida by DuBose. An answer was made by DuBose to the allegations of the petition, and testimony by the parties taken in support of the issues tendered, when the Circuit Judge entered an order dismissing the aforesaid petition. An appeal has been perfected therefrom to this Court.

Counsel for appellant submit to the Court as the controlling question for adjudication the following: Does an acquittal of DuBose of the criminal charge by a jury in the County Judge's Court of having in his possession moonshine whiskey upon which Federal taxes were due and unpaid preclude or bar the State of Florida from obtaining a judgment of forfeiture under Sections 562.39 and 562.40, Florida Statutes 1941, of the 1937 Ford car used by him in the transportation of whiskey? While counsel for appellee suggests that the controlling question for adjudication is whether or not the Circuit Court erred in weighing the evidence adduced in support of the issues made by sworn petition of the State of Florida and answer made under the several provisions of Sections 562.39 and 562.40, Florida Statutes 1941, seeking a judgment of forfeiture of a Ford car alleged to have been used in the transportation of whiskey, contrary to law, and considered in arriving at its decision, a verdict of not guilty rendered by a jury in a criminal prosecution in another court where the identical facts are involved?

The Ford car was seized by the officers on August 7, 1941, when transporting moonshine whiskey without payment of the excise tax. DuBose was driving the car at the time and was seen to toss the jug containing the whiskey from the car into a ditch, and the same was recovered and adduced in evidence in support of the issues made by the sworn petition and defendant's answer. The Ford car was appraised at a value less than $1,000. On November 25, 1941, when counsel announced to the court that they had no further testimony to offer in support of the issues made by the sworn petition and answer, the record discloses the following proceedings:

'By the Court 'Brethren, did I understand that there was a criminal charge based on this case now pending?

'Mr. Horton Yes, sir.

'The Court When is it to come up?

Mr. Horton: The next term of Court.

'Mr. Hodges: It was supposed to come up today.

'The Court: When do they have the county court?

'Mr. Hodges: The first and fourth Mondays of each month.

'The Court: Well, as a matter of maintenance of what looks to be like fundamental legal principles that apply to a criminal case, the law presumes every man to be innocent until the State proves him to be guilty from the evidence beyond a reasonable doubt. I think as a matter of proper judicial conduct in a case of this kind so as not to be made liable for any jeopardy upon the rights of a man to be heard fairly before the court, until he is proved guilty or innocent, that I should withhold judgment in this case until the disposition of the criminal charge against him. For this reason, and this is without any indication at all as to what the judgment of the Court will be in this case,--this man is now charged before the County Judge's Court with a violation of the liquor statute. Say for instance the judgment of the Court in this case would be adverse to him. His rights then in that trial of guilt or innocence would be jeopardized by the former expression of this Court, which might affect his rights upon the question of his guilt or innocence on a trial before a jury where guilt must be shown in the manner indicated under the law. So I think it is the right thing for me to do to just withhold judgment in this case until that case is disposed of, provided there is not too much delay in disposing of it.

'Mr. Rothstein: (Statement off record)

'The Court: I feel I should withhold judgment until the disposition of the other case.'

On March 11, 1942, appellee, by counsel, made known to the Court that he had been placed on trial in the County Judge's Court on the charge of having in his possession unlawfully on August 7, 1941, a beverage containing more than 1% of alcohol by weight on which a Federal excise tax was required to be paid but was not paid, and a verdict of not guilty was rendered by the jury sworn to try the issues and the appellee, after the rendition of the verdict, was by the trial court adjudged not guilty. An order was sought by counsel for appellee in the lower court authorizing or allowing appellee to file a certified copy of the proceedings had in the County Judge's Court in the criminal case to be weighed by the lower court with other evidence adduced in support of the sworn petition seeking a forfeiture of the Ford car of the appellee DuBose.

Counsel for the State of Florida in the civil action objected to the introduction into evidence of a transcript of the proceedings had in the County Judge's Court, involving the identical facts, on numerous grounds, among which are: (1) The proffered transcript was irrelevant to the issues made in the civil proceedings; (2) the judgment of acquittal does not, as a matter of law, constitute res adjudicata; (3) the quantum of proof required by law in the civil action was different from the criminal action; (4) the civil proceedings, as a matter of law, required proof only by a preponderance, while the proof in the criminal case required the establishment of the defendant's guilt beyond a reasonable doubt; (5) subsection (3) of Section 562.40, supra, directs the Circuit Judge to hear evidence, on the issues made by the sworn petition and answer thereto, and 'to try such issues without a jury, and according to his findings on such issues he shall make such orders as shall be proper'. (Emphasis supplied)

The lower court overruled the aforesaid objection and admitted into evidence in the civil proceedings a transcript of the proceedings had in the criminal case in the County Judge's Court and weighed and considered the same, with other evidence adduced, and his findings largely were bottomed on the said proceedings. The order, in part, is viz:

'* * * Owing to the pendency of this criminal charge in the County Judge's Court of Columbia County, this Court, at the conclusion of the taking of testimony in the forfeiture hearing, announced judgment would be withheld pending the outcome of the criminal proceedings. It now appears from certified copies of the proceedings in the County Judge's Court that the defendant was duly tried by jury upon the aforesaid charge and found not guilty.

'It is certain that the statute does not authorize the forfeiture of an automobile unless the same is used in the violation of avove statute, and that to authorize a forfeiture the owner must be guilty of such violation. Here the owner has, in a Court of competent jurisdiction, been tried and found not guilty. Therefore, as this Court views it, the forfeiture proceedings should now be dismissed for it manifestly is not the intention of the Statute to penalize with a forfeiture the property of one who has been found not guilty of the violation which would authorize such forfeiture. There should be no clashing of the Courts in such matters.

'Therefore, it is ordered that the petition for forfeiture of the automobile as described therein be, and the same is hereby dismissed at the cost of the State, * * *'

Section 562.27, Florida Statutes 1941, provides for the seizure by the Director or Supervisor of the Beverage Department or other officers, and a forfeiture thereof to the State of Florida, of designated property unlawfully in the possession of persons, viz: (1) still, piping worm, still apparatus, mash, and fermented liquids, designed or adapted for or useful in the manufacture of intoxicating beverages; (2) the apparatus enumerated in '(1)' supra, with intoxicating beverages, which by the terms of the Act a tax is imposed and has not been paid, with all personal property used to manufacture intoxicating beverages, or to facilitate the violation of the beverage laws; (3) every vessel, boat, cart, carriage, vehicle, automobile, truck, aeroplane, other conveyance, all horses and other animals, used in the transportation or removal of any of the items enumerated in '(1)' and '(2)'; (4) the finding of any still, still piping, still apparatus, still worm, or any part thereof, or any such mash, wort, or wash, or other fermented liquids in the dwelling or place of business, or so near thereto as to lead to the reasonable belief that thay are within the custody, possession and control of the occupant of said dwelling or place of business, shall be prima facie evidence of a violation of the beverage laws by the occupants.

The constitutionality of provisions of our Beverage Act has been considered by this Court, inclusive of Section 562.27, and sustained. We held that these provisions, with others constituted the legal machinery which authorized the Director of the State Beverage Department to collect the excise taxes imposed by the terms...