State v. Egan

• Citation: 287 So.2d 1
• Decision Date: 12 December 1973
• Docket Number: No. 43364,43364
• Parties: STATE of Florida, Appellant, v. William C. EGAN, Appellee.
• Court: United States State Supreme Court of Florida

Page 1

287 So.2d 1

STATE of Florida, Appellant, v. William C. EGAN, Appellee.

No. 43364.

Supreme Court of Florida.

Dec. 12, 1973.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellant.

J. Leonard Fleet, Hollywood, for appellee.

BOYD, Justice.

This cause is before us on appeal from the County Court, Broward County. The trial court (Broward County Circuit Judge McCauley, sitting by designation), in its order, passed upon the validity of Section 775.01, Florida Statutes, 1971, F.S.A., giving this Court jurisdiction of the direct appeal under Article V, Section 3(b)(1), of the Constitution of the State of Florida, F.S.A.

The facts of the case are as follows:

On November 29, 1971, the grand jury, in and for Broward County, Florida, returned an indictment charging appellee in three counts with what can be characterized generally as the common-law offense of nonfeasance. A motion to dismiss was filed challenging the constitutionality of Section 775.01, Florida Statutes, F.S.A., '. . . for reason of the vagueness and ambiguity. . . .' On January 23, 1973, Nunc pro tunc, the 16th day of January, 1973, the lower court entered its order striking down Section 775.01 on the ground that it was '. . . in violation of Sections 9 and 16 of the Constitution of the State of Florida. . . .' In its order, the court stated that '. . . for the first time in the one-hundred forty-four (144) year history of the Statute the Court is faced squarely with the constitutional question.' The controlling issue, as stated by the lower court, was whether Section 775.01 is too vague and indefinite to sufficiently inform a defendant of the charge placed against him. One of the 'numerous reasons' which influenced the lower court to declare the statute unconstitutional was the following:

'The need and reason for common law crimes has passed and ceased to exist, and the necessity for F.S. 775.01 is finished. The Statute should be discarded. The great human principals (sic) handed down through the ages of common law still exist, but the procedure of criminal law indictment requires no more the burden of word of mouth and conflicting, ambiguous phraseology.'

It appears that the order appealed from has a two-fold bottom, to-wit: vagueness and obsolescence. Before embarking upon a discussion of the theories advanced by the lower court in support of its order, some preliminary remarks are deemed appropriate. The legislative antecedents of Section 2.01, Florida Statutes, expressly made the common law of England a part of the law of this jurisdiction. And for more than 100 years, this common law has been in effect in this jurisdiction, except insofar as it has been modified or superseded by statute. Wester v. Rigdon. ¹ In Coleman v. State, ² this Court noted:

'The common law of England in effect on July 4, 1776, was adopted as the law of Florida and declared to be of full force and effect in this state by the Act of November 6, 1829, § 1 (Comp.Gen.Laws 1927 § 87). This was done by statute and such adoption has been held to have been legal and binding and of full force and effect for more than one hundred years.

'We think it cannot be gainsaid that instead of adopting the common law of England as the law of this state by statute, the Constitution might have as easily and as effectively adopted the general law of any other civilized country to be of force and effect in this state and have provided that the same might be abrogated or changed by statute, provided the Constitution of the United States be not violated.' ³

We know of no better place to start than with the statute. Accordingly, Section 775.01 provides:

'The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment shall be of full force in this state where there is no existing provision by statute on the subject.'

What is there, then, about the above quoted statute that is vague? The statute simply makes the common law of England in relation to crimes, with certain exceptions, the law of this state. Surely, the purpose of all rules relating to the construction of statutes is to discover the true intention of the law. But such rules are useful only in case of doubt and should never be used to create doubt, only to remove it. Where the legislative intent as evidenced by a statute is plain and unambiguous, then there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms. Alligood v. Florida Real Estate Commission. ⁴ This Court, in Van Pelt v. Hilliard, ⁵ held:

'The Legislature must be understood to mean what it has plainly expressed, and this excludes construction. The legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain, and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms. Cases cannot be included or excluded merely because there is intrinsically no reason against it. Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity. If a legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety, and policy of its passage. Courts have then no power to set it aside or evade its operation by forced and unreasonable construction. If it has been passed improvidently the responsibility is with the Legislature and not the courts. Whether the law be expressed in general or limited terms, the Legislature should be held to mean what they have plainly expressed, and consequently no room is left for construction. . . .' ⁶

As to the validity of the indictment in the case Sub judice which charged appellee with three counts of a common law offense, appellant relies on LaTour v. Stone, ⁷ and Sullivan v. Leatherman. ⁸ LaTour was an original proceeding in habeas corpus, in which this Court held that an information could not be upheld, under a statute providing for punishment of any state officer guilty of malpractice in office because the information, on its face, showed that the persons charged were not state officers. Of course, the petitioner attacked the information as being void and charging no offense against the laws of the State of Florida. However, this Court pointed out that the common law of England in relation to crimes was in full force in this jurisdiction, absent a statutory provision on the subject. The Court then reasoned:

'It, therefore, follows that if the Information charges any offense it must be found to be an offense under the common law. The information purports to charge Couch and Montgomery with the crime of extortion, and to charge La Tour as principal in the second degree with the commission of such offense. In the laws of England (Earl of Halsbury), Vol. IX, Criminal Law and Procedure, Sec. 954, et seq., 481, 482, it is said:

"A public officer is guilty of extortion who, from an improper motive and under color of office, takes from any person any money or valuable thing which is not due from such person at the time when it is taken."

"The offense of malfeasance in office is similar to common law extortion in some respects. . . . In general, it may be said that any officer whether he be a federal, state, municipal, or a judicial officer, and every other person occupying an official or quasi official position, may be guilty of this offense . . .. There would seem to be no valid reason why one exercising the functions performed by defendant should not be held to be such a public officer as can be held guilty of malfeasance in office at common law. . . . 'All such crimes as especially affect public society are indictable at common law. The test is not whether precedents can be found in books, but whether they injuriously affect the public police and economy' . . .. The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government . . .." ⁹

In concluding, the Court pointed out that the information did not wholly fail to charge the defendant with a criminal offense. This was so because, although the information was defective for failure to allege an essential statutory allegation, it did charge a crime under the common law of England, which, by virtue of Section 5024, R.G.S., Section 7126, C.G.L., was the law of this jurisdiction. Accordingly, the motion to quash the return was denied and the petitioner was remanded.

In Sullivan, the common law indictment was challenged in a habeas proceeding on the ground that the indictment failed to sufficiently charge petitioner with a crime. This Court emphasized that a common law indictment must be in such positive and direct terms as to put the defendant on notice of what he is charged with and enable him to prepare his defnese. We once again affirm this reasoning. The indictment in Sullivan was struck down because, as this Court pointed out:

'(W)hether common law or statutory, the offense must be charged in direct and specific terms and that it was wilfully or corruptly done or omitted.' ¹⁰

It is here emphasized that the indictment in the case Sub judice is not open to this attack.

On page 4 of the order appealed from, the lower court indicated that a search was made of the common law of England in an effort to find where the offense of nonfeasance was discussed. We emphasize, however, that...