State v. Mayo

• Citation: 101 So. 228,88 Fla. 96
• Parties: STATE ex rel. LOCKMILLER v. MAYO, Com'r of Agriculture, et al.
• Decision Date: 24 June 1924
• Court: United States State Supreme Court of Florida

101 So. 228

88 Fla. 96

STATE ex rel. LOCKMILLER v. MAYO, Com'r of Agriculture, et al.

Florida Supreme Court, Division A.

June 24, 1924

Habeas corpus by the State, on the relation of Marion Lockmiller against Nathan Mayo, Commissioner of Agriculture, and another, Superintendent of the State Penitentiary, for release from custody.

Petitioner released.

Syllabus by the Court

SYLLABUS

Prior conviction must be alleged and proven in prosecution as second offender. In an indictment charging one with the violation of the intoxicating liquor law as a second offender, prior conviction of a like offense is not an integral part of the crime charged, in the sense that the defendant's guilt or innocence of the former charge has to be inquired into and determined by the jury, but it is essential to be alleged and proven as a basis for the imposition of the penalty prescribed by statute, in the event the jury should find the defendant guilty of the offense charged.

Must be prior conviction to constitute second offender. Under chapter 9266, Laws of Florida 1923, a person charged with the violation of any of the provisions of the act relating to the unlawful sale, barter, exchange, manufacture, or transportation, or possession for illegal purposes, of intoxicating liquor will not be deemed a second offender and does not incur the increased penalties prescribed, unless he had been theretofore convicted of either manufacturing selling, possessing for sale, or transporting for sale any intoxicating liquor for beverage purposes.

Former conviction as charged should be stated in verdict in trial as second offender. In the trial of a person for the violation of the intoxicating liquor law as a second offender, the jury should be instructed, in the event of finding the defendant guilty to separately find and state their finding in the verdict whether the defendant had been formerly convicted as charged in the indictment.

One restrained of liberty, on indictment charging no statutory offense, entitled to discharge. One who is restrained of his liberty under the sentence of a court, as the result of a trial on an indictment which charges no offense under the statute, is entitled to his discharge on a writ of habeas corpus.

COUNSEL

Farrington & Lockhart, of Fort Lauderdale, for petitioner.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for respondents.

OPINION

ELLIS J.

At the spring term of the circuit court for Broward county, in 1924 Lockmiller was indicted for the offense of unlawfully operating 'a still for the purpose of manufacturing intoxicating liquors, to wit, moonshine whisky.' It was alleged that the accused had been previously convicted in the county court 'for a violation of the laws against the unlawful manufacture, sale, posession, and transportation of intoxicating liquors.'

The language charging the offense to have been committed in January, 1924, is as follows: 'Did then and there unlawfully operate a still for the purpose of manufacturing intoxicating liquors, to wit, moonshine whisky.'

Section 5458, Revised General Statutes, denounces the offense of manufacturing, bartering, or selling of any alcoholic or intoxicating liquors or beverages. The language of the section is, in part, as follows:

'That it shall be unlawful for any person, association of persons, or corporation, or any agent or employee of any person, association of persons or corporation, to manufacture, sell, barter or exchange, or cause to be manufactured, sold, bartered, or exchanged, or in any wise to be concerned in the manufacture, sale, barter or exchange, or to transport, cause to be transported, or in any wise be concerned in the transportation, from any point in this state to any other point in this state, or to any point in this state from any point without the state, * * * any alcoholic or intoxicating liquors or beverages, whether spirituous, vinous or malt, except as is hereinafter provided.'

Section 5486 provided the penalty for violating any of the preceding provisions of the article (which was article 16 of division 5, part 1, title 2, Revised General Statutes) declared to be unlawful. The penalty imposed by the section was a fine 'not exceeding five hundred dollars or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.' The crime was declared to be a misdemeanor. The section also provided that any person, etc., who----

'having previously been convicted as is hereinbefore in this section provided, shall subsequently violate any of the foregoing provisions of this article herein declared to be unlawful, or to be a misdemeanor, or which imposes a duty upon any officer or person, shall upon conviction be deemed guilty of a felony and punished by a fine not exceeding three thousand dollars, or by imprisonment in the state prison not exceeding three years, or by both such fine and imprisonment.'

Section 5461 denounces the crime of owning or having in one's----

'possession, or custody, or control, in this state, any still or distilling apparatus set up with intent to manufacture or distill alcoholic or intoxicating liquors or beverages, whether spirituous, vinous or malt; to produce distilled alcoholic spirits; to brew or to make mash, wort or wash fit for distillation or for the production of alcoholic spirits; or by any process to separate alcoholic spirits from any fermented substance; except as hereinafter provided.'

Under section 5486, supra, a first offense was declared to be a misdemeanor, and a second offense against the provisions of the article was declared to be a felony. Whether the section sought to prescribe merely an increased punishment for habitual offenders or create a new offense, a felony, for a second violation of the act, the allegation of prior conviction was a necessary element in the so-called felony.

We so held in Norwood v. State, 80 Fla. 613, 86 South, 506. In the sense in which the phrase 'necessary element' was used in that case, we have no doubt of its correctness. Prior conviction had to be proved in order to justify the imposition of the greater penalty. It was not, however, an integral part of the crime charged, in the sense that the defendant's guilt or innocence of the first violation of the act had to be inquired into and determined by the jury.

Statutes providing for the infliction of greater punishment upon second offenders merely increase or add to the punishment for the last crime because of the class to which the defendant belongs. He is punished, not for the old or previous crime, but because he belongs to a class of habitual offenders. Such statutes are uniformly held to be valid. See McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Carlesi v. People of State of New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843; Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917.

Section 5486, supra, was amended by chapter 9266, Laws of Florida 1923. A casual reading of the amending statute will reveal the important changes brought about by the...